Dunnington v. Commonwealth

• Decision Date: 01 October 1929
• Citation: 231 Ky. 327,21 S.W.2d 471
• Parties: DUNNINGTON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

21 S.W.2d 471

231 Ky. 327

DUNNINGTON v. COMMONWEALTH.

Court of Appeals of Kentucky

October 1, 1929

As Modified, on Denial of Rehearing, November 26, 1929.

Appeal from Circuit Court, Wayne County.

Elmer Dunnington was convicted of a second violation of the Prohibition Law, and he appeals. Affirmed.

H. C Kennedy, of Somerset, and E. Bertram, of Monticello, for appellant.

J. W Cammack, Atty. Gen., and Samuel B. Kirby, Jr., Asst. Atty Gen., for the Commonwealth.

WILLIS J.

Elmer Dunnington was convicted of a second violation of the Prohibition Law (section 2554a1 and section 2554a2, Ky. St. 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, § 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. St. 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 former trial, or by certified copies thereof." Proceeding upon this declaration, it is argued that in every case all of the documentary evidence mentioned is essential. But such is not the case. In the case cited there was no competent evidence of the former conviction. The clerk had testified respecting it, but the records were not read to the jury. It was upon this point that the judgment was reversed, and, under the facts of that case, it was necessary to introduce the indictment, verdict, judgment of conviction, and sentence. In Lucas v. Commonwealth, 142 Ky. 416, 134 S.W. 456, the indictment in the former case was not introduced. A certified copy of the verdict, judgment of conviction, and sentence in the former case was all that was admitted, and the conviction was upheld. The Lucas Case is the authority relied upon in the Blair Case, supra. In Green v. Commonwealth, 213 Ky. 323, 280 S.W. 1094, the commonwealth introduced the clerk and proved the contents of the record, but none of the records were introduced or read to the jury. Following the case of Blair v. Commonwealth, supra, the judgment was reversed. In Tall v. Commonwealth, 110 S.W. 425, 33 Ky. Law Rep. 541, the true rule was announced and applied.

The evidence of a former conviction may be limited to the verdict and judgment of conviction, and the sentence, if they show the essential facts. If the judgment of conviction is inadequate to show the nature or character of the previous conviction, the indictment is then competent for that purpose, but the facts relating to the previous conviction and the details of the former offense are not competent except so far as is necessary to show its nature and character. In Johnson v. Commonwealth, 209 Ky. 181, 272 S.W. 428, the case of Tall v. Commonwealth, supra, is cited, and it is said that all the commonwealth is required to offer is the...