French v. Commonwealth

• Citation: 222 Ky. 385
• Parties: French v. Commonwealth.
• Decision Date: 16 December 1927
• Court: United States State Supreme Court — District of Kentucky

Page 385

222 Ky. 385

French v. Commonwealth.

Court of Appeals of Kentucky.

Decided December 16, 1927.

1. Indictment and Information. — In prosecution under Rash-Gullion Act (Laws 1922, c. 33), making second offense felony, indictment need not allege that offense charged in previous conviction occurred after act became effective, if allegations of indictment are such as to make it plain that previous offense did in fact occur after such date.

2. Indictment and Information. — In prosecution for second offense of possessing intoxicating liquor under felony provision of Rash-Gullion Act (Laws 1922, c. 33), indictment showing that first criminal charge was returned 20 months after act became effective, and that punishment fixed under former judgment was that prescribed by Rash-Gullion Act, held sufficient though it did not specifically allege that offense charged in previous conviction occurred after act became effective.

3. Searches and Seizures. — Fact that house, described in affidavit for search warrant as located in the city of Waverly, was in fact about 75 feet outside corporate limits, did not render affidavit or search warrant defective, where location of house outside city was not generally known.

Appeal from Union Circuit Court

YEAMAN, PENTECOST & YEAMAN for appellant.

FRANK E. DAUGHERTY, Attorney General, for appellee.

OPINION OF THE COURT BY TURNER, COMMISSIONER.

Affirming.

In November, 1926, there was returned against appellant an indictment charging him with the possession of intoxicating liquor. The first count charges the possession of the liquor on the — day of October, 1926, and within 12 months before the finding of the indictment; and in a second count it is charged that he had theretofore been convicted of the same offense in the same court at the November term, 1923. and a conviction under the felony provisions of the Rash-Gullion Act (Laws 1922, c. 33) was sought under the second count. A trial was had on the last indictment, and defendant, being found guilty, was sentenced to two years' imprisonment, from which judgment this appeal is prosecuted.

Three questions are raised:

(1) That the felony is insufficiently charged in the second count of the indictment, because, as said, it fails to allege that the first offense charged in the second count was committed since the effective date of the Rash-Gullion Act.

(2) That the instructions upon the second count were necessarily, therefore, wrongfully given, if the second count was insufficient.

(3) That defendant was entitled to a verdict of not guilty under the last charge, the evidence being incompetent, because procured under an insufficient description contained in a search warrant of the appellant's home.

1. The second count of the indictment charges that defendant —

"in the state of Kentucky, at the November term, 1923, to-wit, November 28, 1923, was indicted by the grand jurors of Union county in the state of Kentucky for the offense of unlawfully having in his possession intoxicating liquor, . . . and punishable as such under the laws of the commonwealth of Kentucky by a fine of not less than $100 nor more than $300, and by confinement in the jail for a period of not less than 30 days nor more than 60 days, and afterwards at the November term, 1923, to-wit, on the 1st day of December 1923, in the said Union circuit court, the defendant, indicted as aforesaid, . . . pleaded guilty of said offense, and was tried for said offense, and submitted his case to the court without the intervention of a jury, and was found guilty of said offense on said December 1, 1923, as aforesaid, and his punishment fixed by the court by a fine of $200 and 30 days in jail."

And it is then charged therein that the judgment so entered at that time has ever since been in full force and effect, has never been vacated, modified, set aside, or appealed from, and the indictment refers to the order book and the page...