Commonwealth v. Malone

• Decision Date: 05 January 1911
• Citation: 132 S.W. 1033,141 Ky. 441
• Parties: COMMONWEALTH v. MALONE.
• Court: Kentucky Court of Appeals

132 S.W. 1033

141 Ky. 441

COMMONWEALTH v. MALONE.

Court of Appeals of Kentucky.

January 5, 1911

Appeal from Circuit Court, Mason County.

Thomas Malone was indicted for crime, and, from a judgment denying a new trial after a peremptory instruction of acquittal, the Commonwealth appeals. Affirmed.

James Breathitt, Atty. Gen., Tom B. McGregor, Asst. Atty. Gen., and M. J. Hennessey, Commonwealth Atty., for the Commonwealth.

SETTLE J.

The appellee, Thomas Malone, was indicted by the grand jury of Mason county for unlawfully and knowingly selling and disposing of a crop of pooled burley tobacco, without the consent of the authorized agent selected to sell same, in violation of subsection 3 of section 3941a, Ky. St. A demurrer filed by appellee to the indictment was overruled by the circuit court to which he excepted. He thereupon filed in that court a writing containing: (1) A plea of not guilty (2) a plea of former conviction based upon the alleged facts that he had commingled and sold the tobacco described in the indictment with other tobacco he owned and had pooled, and that, having been indicted, tried, and fined for selling such other tobacco, the conviction in that case was a bar to this. The court sustained a demurrer filed by the commonwealth to the latter plea, and to that ruling appellee also excepted. A trial resulted, and at the conclusion of the commonwealth's evidence the court, on appellee's motion, peremptorily instructed the jury to find him not guilty, and such was their verdict. Having been refused a new trial, the commonwealth has appealed.

Appellee's counsel have not filed a brief in this court, and that of counsel for the commonwealth does not advise us of the grounds upon which the peremptory instruction directing appellee's acquittal was granted. We assume, however that it was because of the absence of any evidence conducing to establish his guilt. This conclusion is fortified by our reading of the evidence appearing in the record. Indeed, the facts alleged in the indictment do not constitute an offense under the statutes, and the demurrer to it should have been sustained.

Section 3941a, which is a part of chapter 103a, Kentucky statutes provides: "It is hereby declared lawful for any number of persons to combine, unite or pool any or all of the crops of wheat, tobacco, corn, oats, hay or any other farm products raised by them, for the purpose of classifying, grading storing, holding, selling, or disposing of same, either in parcels or as a whole, in order or for the purpose of obtaining a greater or higher price therefore than they might or could obtain or receive by selling said crops separately or individually." Subsection 2, § 3941a, declares valid contracts entered into by persons with each other for the purpose of pooling, classifying, grading, storing, holding, selling, or disposing of the crops therein mentioned "raised" by them, in order to obtain a better or higher price therefor...