Cooke v. Commonwealth
| Citation | 199 Ky. 111,250 S.W. 802 |
| Parties | COOKE v. COMMONWEALTH. |
| Decision Date | 08 May 1923 |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Criminal Division.
Otis Cooke was convicted in the circuit court, on appeal from a police court, of unlawfully selling intoxicating liquors, and he appeals. Affirmed.
Huggins & Oldham and Geo. G. Buckingham, all of Louisville, for appellant.
Chas I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen for the Commonwealth.
Following his trial and conviction in the Louisville police court of the offense of unlawfully selling intoxicating liquor charged by warrant issued from that court, the appellant, Otis Cooke, appealed from its judgment to the Jefferson circuit court, criminal division; his trial in the latter court resulting in a verdict and judgment finding him guilty of the offense charged and fixing his punishment at a fine of $100, and imprisonment of 30 days in jail. The appellant entered a motion in arrest of judgment, and also filed a motion and grounds for a new trial, both of which motions were overruled. Excepting to these rulings, he has appealed from the judgment of the circuit court to this court.
The errors assigned for the reversal of the judgment asked of this court are: (1) The overruling by the circuit court of the appellant's demurrer to the warrant charging the offense. (2) That the verdict is contrary to law. As the record before us does not contain the warrant charging the appellant with the offense upon which he was tried and convicted, both in the police and circuit courts, we are unadvised of its form or contents, and cannot, therefore, determine whether it failed in any material particular to meet the requirements of section 27, Criminal Code, by which the sufficiency of such a warrant must be tested. So in its absence we can but indulge the presumption that the warrant was regular in form, that it properly charged and described the offense of which the appellant was convicted, and that it was legally issued.
It is, however, argued by counsel for the appellant that inasmuch as chapter 33, Acts General Assembly 1922, creating the offense for which the warrant in question was issued and of which he was convicted, authorize by way of punishment for its commission a fine as high as $300, and imprisonment of 60 days in jail, and, in addition permits the court in which his conviction results to require of the defendant a peace bond that may be placed as high as $5,000, these extreme penalties makes the offense such as cannot be proceeded against by warrant, but one that section 12, Constitution, provides must be prosecuted by indictment alone. It is sufficient to say that this contention was overruled by us in Lakes v. Goodloe, 195 Ky. 240, 242 S.W. 632, in which the plaintiff sought of this court a writ of prohibition to prevent the judge of a quarterly court from trying him upon a warrant for the same offense charged in the instant case; it being expressly declared by the court in the opinion of the case, supra, that the provisions of the statute allowing prosecutions by warrant, in courts inferior to the circuit court, of persons charged with the offense in question and others named therein, do not violate section 12 of the Constitution, supra. Manifestly, the appellant's contention that his prosecution by warrant for the offense charged was illegal cannot be sustained upon the ground urged by him, or any other appearing from the record. Hence neither in overruling his demurrer to the warrant, nor his motion in arrest of judgment, did the trial court commit error.
The appellant's further contention that the verdict of the jury was contrary to law is bottomed on the theory that, if guilty of making a sale of intoxicating liquor as charged, he was induced to commit the offense by illegal means employed by officers of the law, which made them particeps criminis and the evidence of the sale furnished by their testimony incompetent, exclusion of which would have left no evidence whatever tending to establish the appellant's guilt, and entitled him to a directed verdict of acquittal as requested by him at the conclusion of the evidence. It appears from the commonwealth's evidence, furnished by the witnesses Clark and Moore, both members of the police force of the city of Louisville, the...
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O'BRIEN v. United States
...70 Colo. 250, 193 P. 496; Simmons v. People, 70 Colo. 262, 199 P. 416; State v. See, 177 Iowa, 316, 158 N. W. 667; Cooke v. Commonwealth, 199 Ky. 111, 250 S. W. 802; State v. Abraham, 158 La. 1021, 105 So. 50; People v. McIntyre, 218 Mich. 540, 188 N. W. 407; People v. England, 221 Mich. 60......
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Spight v. State
...2 F.2d 39; State v. See (1916), 177 Iowa 316, 158 N.W. 667; State v. Driscoll (1925), 119 Kan. 473, 239 P. 1105; Cooke v. Commonwealth (1923), 199 Ky. 111, 250 S.W. 802; People v. England (1923), 221 Mich. 607, 192 N.W. 612; DeGraff v. State (1909), 2 Okl.Cr. 519, 103, P. 538; Bauer v. Comm......
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