Commonwealth v. Cope

• Decision Date: 26 October 1899
• Parties: Commonwealth v. Cope.
• Court: Kentucky Court of Appeals

Page 173

107 Ky. 173

Commonwealth v. Cope.

Court of Appeals of Kentucky.

October 26, 1899.

APPEAL FROM GRAVES CIRCUIT COURT.

H. J. MOORMAN, COMMONWEALTH'S ATTORNEY, FIRST CIRCUIT COURT DISTRICT, FOR APPELLANT. (W. S. TAYLOR, ATTORNEY-GENERAL, OF COUNSEL.)

SAML. H. CROSSLAND FOR APPELLEE.

JUDGE HOBSON DELIVERED THE OPINION OF THE COURT.

Appellee was indicted for selling spirituous liquors in violation of the general local option law (Kentucky Statutes, sections 2554-2568). He demurred to the indictment. The demurrer was overruled and the case submitted to a jury, who found him guilty, and fixed his fine at $100. The appellee entered a motion in arrest of judgment, which was overruled. He then entered a motion for a new trial, which the court sustained, and set aside the order overruling the demurrer to the indictment, sustained the demurrer, and dismissed the prosecution. The Commonwealth appeals, insisting that the indictment was sufficient.

The charge is made in the indictment in these words: "The said Hub Cope, in the said county of Graves, on the 27th day of June, 1898, and before the finding of this indictment did sell, loan, and barter spirituous, vinous, and malt liquors, to-wit, whisky, brandy, wine, gin, ale, and beer, by retail, within the corporate limits of the city of Mayfield, Kentucky, to J. W. Baldree, after an election duly held therein on the 26th day of September, 1896, to take the sense of the legal voters of said city on the question whether or not spirituous, vinous, or malt liquors should be sold, loaned, or bartered therein, and the board duly authorized to compare and count said vote had duly compared and counted same, and found a majority of all the votes cast at said election were against the sale, loan, or barter of said liquors in said city, and had duly certified this fact to the county court of Graves county, and said certificate had been duly recorded on the order book of said court, as provided by law; against the peace and dignity of the Commonwealth of Kentucky."

It is insisted that this indictment is sufficient, under section 2556 of the Kentucky Statutes, which is as follows:

"If it shall be found that a majority of the legal votes cast at any election herein provided for were given for or against the sale, barter or loan of spirituous, vinous or malt liquors in the said county, city, town, district, or precinct, it shall be the duty of the canvassing board to certify that fact, which certificate shall be delivered to the clerk of the county court and by him safely kept until the next regular term of the county court, at which term the judge thereof shall have the same spread on the order book of his court, and said entry of the certificate in the order book, or a certified copy thereof, shall be prima facie evidence in any or all proceedings under this act."

It is said the Commonwealth need only make out in the indictment a prima facie case, and that under this section the facts charged in the indictment are sufficient for this purpose.

By section 2557 it is provided that after the entry of the certificate in the order book of the county court, if the vote was against the sale, it shall be unlawful for anybody to sell any spirituous liquors in the territory named, and that any person so selling shall be fined not less than $100 nor more than $200 for each offense. The statute is not operative until the vote is given against the sale, and an indictment can not be good which does not charge this fact. It is only charged in this case that the board authorized to count the votes found a majority of all the votes cast at said election were against the sale, and certified this fact to the county court. The averment that an officer certified to a fact is not a sufficient averment that the fact existed.

"Thus, in an action of trover for ten pieces of money, the defendant pleaded that there was a wager between the plaintiff and one C. concerning the quantity of yards of velvet in a cloak, and the plaintiff and C. each delivered into the defendant's hands ten pieces of money, to be delivered to C. if there were ten yards of velvet in the cloak, and, if not, to the plaintiff; and proceeded to allege that upon measuring of the cloak it was found that there were ten yards of velvet...