Commonwealth v. Kenner

• Decision Date: 03 December 1850
• Citation: 50 Ky. 1
• Parties: Commonwealth v. Kenner___Three Cases; Same v. Wills.
• Court: Kentucky Court of Appeals

50 Ky. 1

Commonwealth v. Kenner___Three Cases;

Same v. Wills.

Court of Appeals of Kentucky.

December 3, 1850

Selling Spirituous Liquor to Slaves.

WRITS OF ERROR TO THE CHRISTIAN CIRCUIT.

Harlan, Attorney General, for the Commonwealth.

OPINION

MARSHALL CHIEF JUSTICE.

THESE four cases come before us on presentments found under the second section of the act of 1834, concerning tavern keepers etc., Statute Law, 1503. That section enacts " that if any person shall sell, give or loan any spirituous liquor to any slave or slaves, other than his own, unless he be entitled, for the time being, to the service of such slave or slaves by contract with the master or owner, or unless he have permission to do so from the master or owner, the person so offending shall forfeit and pay ten dollars," etc. Each presentment charges that the defendant sold liquor to a slave (designated by name), " other than his own; " but neither of them negatives or notices either of the other circumstances or qualifications contained in the clause above quoted. And the Circuit Court having determined this omission to be a fatal defect in the presentment, the propriety of that opinion presents the only question which we shall notice.

We consider the qualifications omitted in the presentment, not as being in the nature of a proviso, or an exemption from the operation of the enacting clause, certain cases embraced within its terms, but as a part of the enacting clause itself--that is, as a part of the description of the offense for which a penalty is imposed, and without which the statutory definition of the offense is not fully given. If it were necessary to recite in the presentment, that part of the statute on which it is founded, the qualifications under notice could not be omitted, any more than that which is contained in the words, " " other than his own." They are all precisely of the same character as defining the circumstances essential to constitute the offense. And, as all must be stated in showing what the statutory offense is, so must they all be negatived, either in terms or in substance, in charging an offense under the statute.

A presentment made under the second section of the act of 1834. (Stat. Law, 1503), prohibiting the sale or gift of spirituous liquor to slaves should charge that the vender or giver was not entitled to the service of the slave for the time being, nor had he permission to sell or give...