Johnson v. Com.

• Decision Date: 15 December 1944
• Parties: JOHNSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

184 S.W.2d 212

299 Ky. 72

JOHNSON v. COMMONWEALTH.

Court of Appeals of Kentucky

December 15, 1944

Appeal from Circuit Court, Knox County; Flem D. Sampson, Judge.

Mrs Martin Johnson was convicted of selling intoxicating liquor in local option territory, and she was granted an appeal.

Judgment reversed with directions.

J. B. Campbell, of Barbourville, for appellant.

Eldon S. Dummit, Atty. Gen., for appellee.

THOMAS Justice.

The appellant, Mrs. Martin Johnson, was convicted in the Knox circuit court at its February term, 1944, of selling intoxicating liquor in local option territory, and punished by a fine of $50, and thirty days in jail, with the consequent requirement in such cases that the convicted defendant execute a peace bond, which she later did.

Her motion for a new trial was overruled, and she has filed in this court a transcript of the record with a motion for an appeal, which is now sustained and the appeal granted.

We reversed the judgment in an opinion delivered October 20 1944, upon two grounds, (1) that the indictment did not name the purchaser of the liquor at the alleged illegal sale for which appellant was convicted, and (2) that the evidence was insufficient to sustain the verdict of guilty, and that a directed verdict of acquittal should have been given.

Upon reconsideration, on petition for rehearing filed by the Commonwealth, our attention has been called to the fact that the bill of exceptions was not filed within the time prescribed in section 334 of our Civil Code of Practice, and without showing any legal excuse for the delay. It should therefore, be stricken from the record, which is accordingly done, and which leaves for our consideration only the question as to whether or not the indictment was sufficient to charge a public offense and to sustain a conviction by the verdict of the jury trying the case. Omitting caption and signatures, it reads:

'The Grand Jury of Knox County, in the name and by authority of the (Commonwealth of Kentucky accuse Mrs. Martin Johnson of the) offense of selling spirituous, vinous, malt and intoxicating liquors.

'Committed in manner and form as follows: viz., the said Mrs. Martin Johnson on the 10th day of June, 1943, and within 12 months next, before the finding of this indictment and in the county and state aforesaid, did unlawfully, wilfully sell spirituous, vinous, malt and intoxicating liquors, and which said liquors were not for sacramental, medicinal, scientific, or mechanical purposes, and in local option territory where prohibition had become effective under the laws of the Alcoholic Control Act, and contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the Commonwealth of Kentucky.' (Our parenthesis.)

The language in parenthesis is not contained in the indictment as copied by the Clerk, but which omission may have been made by him through oversight in transcribing the record.

It will thus be seen that in the descriptive part of the indictment no purchaser of the liquor in the alleged sale by appellant is named, and in describing the status of the territory within which the alleged unlawful sale was made the indictment says that it was done 'in local option territory where prohibition had become effective under the laws of the Alcoholic Control Act.'

In the case of Commonwealth v. White, 57 Ky. 492, 18 B.Mon. 492, the accused, a free negro, was charged with selling liquor contrary to a statute then in existence, and at his trial he was convicted, followed by an appeal to this court. His offense was committed in 1857, six years after the adoption of our Codes of Practice, one section of which was substantially the same as section 124 of our present Criminal Code of Practice, which says: 'The indictment must be direct and certain as regards * * * the party charged. * * * The offense charged * * *,' and, 'the particular circumstances of the offense charged, if they be necessary to constitute a complete offense.' This court on the appeal of the White case, in considering the requisites of an indictment as set forth in the Code section, said:

The object of these and all similar provisions is, that the defendant may be informed, with reasonable certainty, of the charge upon which he is to be tried, and that such...