Forman v. Com.

• Decision Date: 29 September 1922
• Citation: 243 S.W. 1043,195 Ky. 758
• Parties: FORMAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

243 S.W. 1043

195 Ky. 758

FORMAN v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 29, 1922

Appeal from Circuit Court, Fleming County.

Ernest Forman was convicted of violation of the prohibition law, and he appeals. Reversed.

M. J Hennessey, of Augusta, for appellant.

Charles I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen for the Commonwealth.

MOORMAN J.

Ernest Forman was convicted in the Fleming circuit court and given a sentence of 30 days in jail and a fine of $300 under the following indictment:

"The Commonwealth of Kentucky against Ernest Forman, alias Ernest Crawford, G. H. Hitt, and L. T. Thackson, of the offense or crime of violating prohibition law, committed as follows, viz.: 'The said Ernest Forman alias Ernest Crawford, G. H. Hitt, and L. T. Thackson, on the _____ day of _____ 1921, and other days before and since, within 12 months past, and before the finding of this indictment, in the county aforesaid, did unlawfully have in possession keep and transport for the purposes of sale, certain spirituous, vinous, malt, and intoxicating liquor, to wit, white or moonshine whisky, to be used as a beverage, and not for sacramental, scientific, medicinal, or mechanical purposes, contrary to law and against the peace and dignity of the commonwealth of Kentucky.' "

While a demurrer to the indictment was pending, the commonwealth attorney voluntarily elected to try the accused on the charge of having intoxicating liquor in his possession for sale in violation of the statutes. The demurrer was overruled, to which the defendant excepted, and, being compelled to proceed to trial, at the conclusion of the commonwealth's evidence, and again at the conclusion of all the evidence, he moved the court to instruct the jury to return a verdict of acquittal. These motions were overruled, but in the motion and grounds for a new trial the defendant again attacked the validity of the indictment.

On this appeal several questions are presented for decision, but we deem it necessary to consider only one, which is whether or not such an offense is alleged in the indictment as will support the judgment of conviction.

It will be noted that the form of the attempted indictment is unusual, since there is no specific accusation against appellant, further than the charge in the descriptive (not the accusative) part that he, with others, did unlawfully have in his possession, keep, and transport for the purpose of sale certain spirituous, vinous, malt and intoxicating liquor, to wit, white or moonshine whisky, to be used as a beverage, and not for sacramental, scientific, medicinal, or mechanical purposes, etc. The usual accusative form is absent, and in lieu thereof appears "The Commonwealth of Kentucky against Ernest Forman," etc., "of the offense or crime of violating prohibition law committed as follows, viz.," after which is the descriptive part of the offense. Appellant is not charged with any offense or crime in the accusative part of the indictment, but there is merely incorporated into it the words "of the offense or crime of violating...