Dunnington v. Commonwealth
| Decision Date | 26 November 1929 |
| Citation | 231 Ky. 327 |
| Parties | Dunnington v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
1. Indictment and Information. — Indictment for second violation of Prohibition Law, under Ky. Stats., Supp. 1928, secs. 2554a-1, 2554a-2, charging that first conviction for unlawfully giving intoxicating liquor was upon indictment returned on January 24, 1926, held sufficient without alleging in terms that first conviction was for offense committed after March 22, 1922, since first offense was misdemeanor and must have been committed within year prior to first indictment; indictment being sufficiently certain under Criminal Code of Practice, sec. 122.
2. Indictment and Information. — Indictment for second violation of Prohibition Law, under Ky. Stats., Supp. 1928, secs. 2554a-1, 2554a-2, need not charge in so many words that first offense was committed after March 22, 1922, if allegations are sufficient to lead unerringly to that conclusion.
3. Indictment and Information. — Indictment which contains statement of acts constituting offense in ordinary and concise language and in such a manner as to enable a person of ordinary understanding to know what is intended, and to enable the court to pronounce judgment on conviction, is sufficient under Criminal Code of Practice, sec. 122.
4. Criminal Law. — In prosecution for second violation of Prohibition Law under Ky. Stats., Supp. 1928, secs. 2554a-1, 2554a-2, evidence of prior conviction and of defendant's subsequent sale of liquor held sufficient to authorize submisssion of case to jury.
5. Criminal Law. — In prosecution for second offense, evidence of former conviction may be limited to verdict and judgment of conviction and sentence, if they show the essential facts.
6. Criminal Law. — If judgment of conviction is inadequate to show nature or character of previous conviction, in prosecution for second offense, indictment is competent for that purpose; but indictment and facts related to previous conviction and details of former offense are incompetent, except where necessary to show nature of former offense.
7. Criminal Law. — In prosecution for second offense, jury does not retry case, and validity of indictment in the former case is concluded by the prior judgment.
8. Criminal Law. — In prosecution for second offense, commonwealth need not show that former conviction had not been vacated or reversed; but it will be presumed to be in force, unless defendant shows otherwise.
9. Criminal Law. — In prosecution for second offense, in which clerk testified that former judgment of conviction had not been set aside or reversed, and judgment, which contained essential evidentiary facts, was read to jury, together with portions of record showing character of former charge, and where judgment contained verdict and sentence, and stated the offense charged by the indictment, it was not essential that the indictment in the former case be introduced in evidence.
10. Criminal Law. — That indictment for second violation of Prohibition Law, under Ky. Stats., Supp. 1928, secs. 2554a-1, 2554a-2, left number of earlier indictment blank, was immaterial under Criminal Code of Practice, sec. 122, relative to sufficiency of indictment, where first case was identified and there was nothing to show that defendant was in any way misled.
11. Criminal Law. — In prosecution for second violation of Prohibition Law, under Ky. Stats., Supp. 1928, secs, 2554a-1, 2554a-2, instruction requiring jury to believe beyond reasonable doubt that defendant was guilty of offense charged in present indictment, and that he had been previously convicted of specified offense against prohibition act, held not objectionable as failing to require jury to identify defendant with the person formerly convicted.
Appeal from Wayne Circuit Court.
H.C. KENNEDY and E. BERTRAM for appellant.
J.W. CAMMACK, Attroney General, and SAMUEL B. KIRBY, JR., Assistant Attorney General, for appellee.
Affirming.
Elmer Dunnington was convicted of a second violation of the Prohibition Law (section 2554a1 and section 2554a2, Ky. Stats., Supp. 1928) for which a penalty of imprisonment is provided, and sentenced to serve one year in the penitentiary. On this appeal he complains that the court erred in overruling a demurrer to the indictment, in the instructions given to the jury, and that the evidence of the former conviction was insufficient. It is said that the charge of a former conviction omits the essential allegation that the first conviction was for an offense committed after March 22, 1922. The indictment charges that the first conviction for unlawfully giving spirituous, vinous, malt, and other intoxicating liquors was upon an indictment returned on January 24, 1926. Since the offense charged in the first indictment was a misdemeanor, it must have been committed within a year prior to the date the indictment was returned. We have held that an indictment is sufficient, although it does not charge in so many words that the offense was committed after March 22, 1922, if the allegations of fact therein are sufficient to lead unerringly to that conclusion. Spencer v. Commonwealth, 221 Ky. 166, 298 S.W. 389; French v. Commonwealth, 222 Ky. 385, 300 S.W. 902. An indictment is sufficient which contains a statement of the acts constituting the offense in ordinary and concise language, and in such a manner as to enable a person of ordinary understanding to know what is intended; and with such degree of certainty as to enable the court to pronounce judgment, on conviction, according to the right of the case. Criminal Code, sec. 122; Overstreet v. Com., 147 Ky. 471, 144 S.W. 751; Com. v. Drewry, 126 Ky. 183, 103 S.W. 266, 31 Ky. Law Rep. 635, Merdith v. Com., 199 Ky. 544, 252 S.W. 894; Cf. Middleton v. Com., 226 Ky. 220, 10 S.W. (2d) 812.
The particularity required in the earlier cases was necessitated by the fact that the prosecutions arose shortly after March 22, 1922, and it was impossible to tell from the facts stated in the indictment whether the first offense was committed before or after the passage of the act, and for that reason some of the convictions were not sustained. Williams v. Commonwealth, 212 Ky. 495, 279 S.W. 973; English v. Commonwealth, 216 Ky. 608, 288 S.W. 320. The demurrer to the indictment in this case was properly overruled.
The motion for a peremptory instruction was properly denied. The evidence showed that the defendant had been convicted in the Wayne circuit court in May, 1926, upon an indictment returned in the preceding January, charging a violation of section 2554a1, Ky. Stats., Supp. 1928. It further showed that the defendant had sold liquor to the prosecuting witness about the first of February, 1929. The proof of these facts was sufficient to authorize submission of the case to the jury. Thacker v. Com., 228 Ky. 819, 16 S.W. (2d) 448.
But the appellant insists that there was no competent evidence from which the jury could find the fact of the former conviction. In the case of Blair v. Commonwealth, 171 Ky. 319, 188 S.W. 390, 393, the court said: "In this jurisdiction, a former conviction of a felony must be shown by the introduction in evidence of the indictment, verdict, judgment of conviction, and sentence of the...
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