Elliott v. Commonwealth

• Decision Date: 25 April 1922
• Citation: 194 Ky. 576
• Parties: Elliott v. Commonwealth.
• Court: Kentucky Court of Appeals

Page 576

194 Ky. 576

Elliott v. Commonwealth.

Court of Appeals of Kentucky.

Decided April 25, 1922.

Appeal from Graves Circuit Court.

B. C. SEAY and O. H. BOOKER for appellant.

CHAS. I. DAWSON, Attorney General, and THOMAS B. McGREGOR, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE HURT — Reversing.

An attempt was made to indict the appellant, Clarence Elliott, for a violation of the statute known as the Prohibition Law, and which was enacted by the General Assembly at its 1920 session, and is now chapter 81 of the Session Acts of 1920. The offense which the appellant was accused of committing was stated in the accusatory part of the indictment to be the "offense of selling a beverage and decoction to be used as a beverage." The descriptive portion of the indictment charged that the offense was committed by selling a "decoction and beverage" which would produce intoxication, called Jamaica ginger, to certain named parties, to be used as a beverage. A demurrer to the indictment was overruled and a trial followed which resulted in the conviction of the appellant and his punishment being fixed by the verdict, and judgment at a fine of $300.00 and imprisonment for sixty days in the county jail.

A motion for a new trial was overruled, and hence this appeal.

Several alleged errors of the court are relied upon in the motion for a new trial, but it does not appear to be worth while to consider any of them, except the contention that the demurrer to the indictment should have been sustained, and the court overruling the demurrer was in error.

The principles of common law relating to indictments required that to make a valid indictment the offense of which it was proposed to accuse the defendant, should be stated with certainty. This was necessary because the same act might be the subject of different offenses and with different punishments, but the exact offense with which one should be accused was a matter of election by the grand jury, or, in cases where informations would lie, of the public prosecutor. Hence to enable the one accused to know exactly what he was called upon to defend, and the court be enabled to impose the proper punishment it was necessary to accuse one of a particular offense in the indictment. The same reason holds good to a more or less extent under Code proceedings. Following the common law the 124th section of the Criminal Code provides as follows:

"The indictment must be direct and certain as regards (1) the party charged; (2) the offense charged; (3) the county in which the offense was committed; (4) the particular circumstances of the offense charged, if they be necessary to constitute a complete offense."

Subsection 2 of section 122, Criminal Code, provides with regard to the statements of the acts constituting the offense as follows:

"A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common 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."

While the latter statute more particularly relates to the requirements of the descriptive portion of an indictment, but if it should be construed as, also, applying to the accusative part, it will be observed that it does not dispense with, but rather adds to the necessity of certainty as to the offense charged, required by subsection 2 of section 124, supra. The two statutes must of course be construed together. It was held by this court in Commonwealth v. Tobin, 140 Ky. 261, "An indictment must charge in its accusing part the public offense for which it is intended to present the accused, and in the descriptive part must state the facts which, if established by the proof, constitutes the offense charged." It has never been held in any case that certainly in stating the offense charged in an indictment would dispense with the necessary and required certainty in stating the particular circumstances of the offense charged; nor that certainty in stating the particular circumstances constituting the offense charged would dispense with the required certainty in stating the offense of which the defendant is accused. In Brooks v. Commonwealth, 98 Ky. 143, it was said:

"The particular circumstances of suffering and permitting gaming upon the premises of defendant are with sufficient certainty and directness stated in the indictment; but that does not supersede or dispense with the...