Denham v. Com.

• Decision Date: 01 November 1949
• Citation: 311 Ky. 320,224 S.W.2d 180
• Parties: DENHAM v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

224 S.W.2d 180

311 Ky. 320

DENHAM v. COMMONWEALTH.

Court of Appeals of Kentucky

November 1, 1949

Teedy Denham was convicted in the Circuit Court of Pulaski County H. C. Tartar, J., of a third violation of the Local Option Law, and he appealed.

The Court of Appeals, Sims, C.J., reversed the conviction holding that indictment was defective, that there was no necessity for Commonwealth to introduce in evidence indictments charging prior offenses, that defendant was not entitled to a directed verdict, and that instruction was as favorable as defendant could expect.

H. K. Spear, Somerset, for appellant.

A. E Funk, Atty. Gen., Wm. F. Simpson, Asst. Atty. Gen., for appellee.

SIMS Chief Justice.

Teedy Denham was convicted of a third violation of the local option law and his punishment was fixed at confinement in the penitentiary for 18 months, KRS 242.990. In seeking to reverse the judgment he insists that the court erred: 1. In overruling his demurrer to the indictment; 2. in instructing the jury; 3. in not directing a verdict in his favor.

The instant indictment was returned on Feb. 8, 1949, and in the first count it charged appellant with possessing 'on the ___ day of January 1949', 18 gallons of moonshine whiskey in local option territory for the purpose of sale. The second count in appropriate terms charged appellant had been indicted and convicted on Feb. 16, 1938, in the Pulaski Circuit Court of the offense of selling intoxicating liquor in local option territory, and it expressly averred that the offense charged in the first count was committed subsequent to the offense and conviction set out in the second count. The third count charged appellant had been indicted at the May 1938 term of the Pulaski Circuit Court on the charge of possessing for sale intoxicating liquor in local option territory, and was convicted thereof on June 2, 1938. This third count charged the offense described in the first count was committed at a time subsequent to the conviction referred to in the third count, but it did not charge that the offense described in the third count was committed at a time subsequent to the commission and to the conviction of the offense referred to in the second count. The indictment alleged neither of the judgments of conviction set out in counts two and three has been set aside, modified or vacated.

It is manifest that the indictment is defective because it does not aver that the offense of possessing intoxicating liquor in local option territory for the purpose of sale, which led to appellant's second conviction, was committed subsequent to his first conviction of selling intoxicating liquor in local option territory. He was tried and convicted for the first offense in February 1938, and was indicted on the second offense on May 12, 1938, and was tried and convicted of it on June 2, 1938. It is entirely possible that the second offense was committed before his conviction of the first offense and the indictment before us does not charge the second offense was committed after the first conviction, but merely that it was committed before the commission of the offense charged in the first count.

In construing the Habitual Criminal Statute, KRS 431.190, we have consistently held that the previous crimes and the one with which the accused is presently charged must have been committed progressively after each conviction. The indictment, the evidence and the instructions should make it clear that the commission of the second crime was subsequent to the conviction of the first, and the commission of the third was after the conviction of the second. Coleman v. Commonwealth, 276 Ky. 802, 125 S.W.2d 728, and the authorities therein cited.

The proof before us shows the three crimes occurred in the sequence mentioned in the above paragraph and the instructions submitted the proper sequence of the three crimes, but since the indictment failed to charge that the second crime was committed after appellant had been convicted of the first offense, it is defective and charged only a misdemeanor and not a felony. Criminal Code of Practice, § 122. One charged...