Farris v. Com.

• Decision Date: 07 June 1901
• Citation: 63 S.W. 615,111 Ky. 236
• Parties: FARRIS v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

63 S.W. 615

111 Ky. 236

FARRIS v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

June 7, 1901

Appeal from circuit court, Knox county.

"To be officially reported."

Brit Farris was convicted of the offense of selling liquor in violation of a local law, and he appeals. Reversed.

B. B Golden, for appellant.

R. J Breckinridge and J. K. Roberts, for appellee.

PAYNTER C.J.

By an act approved April 15, 1884, entitled "An act to regulate the sale of spirituous, vinous, or malt liquors, or any intoxicating beverage, in the counties of Knox and Whitley" (1 Acts 1883-84, c. 789), it is made unlawful for any person to sell, directly or indirectly, any spirituous, vinous, or malt liquors, or any intoxicating beverage, in the counties of Knox and Whitley, except a druggist, in a prescribed way, and a local distiller, who "may sell spirituous, vinous, or malt liquors of his own manufacture in quantities not less than ten gallons, to be removed from his premises." The indictment, in describing the offense, charges that the appellant did unlawfully sell "intoxicating spirituous, vinous, and malt liquors, and a mixture thereof, to S. M. White, by the drink, ***" in violation of the provisions of an act of the general assembly of the commonwealth of Kentucky regulating the sale thereof, etc., in the counties of Knox and Whitley, approved April 15, 1884; he not being a legal manufacturer, distiller, or druggist.

It is insisted the indictment is defective because the accusative part did not charge defendant with the offense of unlawfully "selling intoxicating spirituous, vinous, and malt liquors, and a mixture thereof." We do not think the omission of the word "unlawful" renders the indictment defective. It charges that he was guilty of the offense of selling spirituous liquors, etc., in quantities which would be in violation of the act of the legislature referred to. The accusative part of the indictment in general terms describes the offense, which is sufficient, under section 124 of the Criminal Code of Practice. In that part of the indictment describing the acts which constitute the offense, it is charged that the liquor was unlawfully sold.

Counsel for appellant urges that the indictment is defective because it is not sufficiently specific to enable the defendant to know under what law he is being prosecuted. It is based upon the local law, to which we have referred. This court, in Thompson v. Com., 45 S.W. 1039, 46 S.W. 492, 698 held that section 61 of the constitution did not repeal the local act prohibiting the sale of spirituous, vinous, and malt liquors, but that all laws upon the subject were modified by the provisions of the general law as to procedure, amount permitted to be sold, and penalty. So the local act referred to is in force, but the penalty prescribed by the general law is to be applied for its violation. Section 2557, Ky. St., imposes a penalty of not less than $100, nor more than $200, for the offense of selling spirituous, vinous, or malt liquors. Section 2557a, Ky. St., imposes a penalty of not less than $20, nor more than $100, for selling "any beverage, liquid mixture or decoction of any kind which produces or causes intoxication." It was unnecessary to use the word "intoxicating" in the indictment, in the description of liquors, and it was unnecessary to use the words "and a mixture thereof." Still we think the indictment clearly charges the defendant with selling spirituous, vinous, and malt liquors; and the penalty therefor, under section 2557, Ky. St., is not less than $100 nor more than $200.

It appears from the record exhibited on the trial of the case that a vote was taken in precinct No. 9 in Knox...