Johnson v. Commonwealth

• Decision Date: 16 January 1925
• Parties: Johnson v. Commonwealth.
• Court: Kentucky Court of Appeals

206 Ky. 594

Johnson v. Commonwealth.

Court of Appeals of Kentucky.

Decided January 16, 1925.

Appeal from Clark Circuit Court.

RODNEY HAGGARD and G. B. FISHBACK for appellant.

FRANK E. DAUGHERTY, Attorney General, and GARDNER K. BYERS, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY TURNER, COMMISSIONER — Affirming.

In February, 1924, appellant was convicted of having unlawful possession of intoxicating liquors, and satisfied the sentence imposed. At the September term, 1924, of the Clark circuit court he was charged in an indictment with the unlawful sale of intoxicating liquors, and that indictment further charged that the latter offense was a second violation of the provisions of chapter 33 of the Acts of 1922, and set up the former conviction.

On his trial under this indictment he was convicted of a felony under the habitual criminal provisions in the Enforcement Act of this state.

The first section of that act makes it unlawful to manufacture, sell, barter, give away, or keep for sale, or unlawfully have in possession or transport such liquors, except for certain purposes not here involved. The second section prescribes a penalty for the first violation of any of the provisions of the act except certain ones for which a particular penalty is provided, and fixes the penalty at a fine and imprisonment in the county jail, and then proceeds,

"Upon a second conviction for a violation of any provision of this act (except certain provisions not here involved), the defendant or defendants, if persons, shall be confined in the penitentiary for not less than one year, nor more than three years, and for a third conviction and each subsequent conviction, the person or persons shall be imprisoned in the penitentiary not less than five years nor more than ten years."

It has been held by this court that the several offenses denounced by section one of this act were separate and distinct offenses, and the first and controlling question raised by appellant on this appeal is that as the offense of unlawful possession and that of unlawful selling are separate and distinct the habitual criminal provision quoted has no application because the first conviction was for an offense not identical with the second charge and conviction.

The precise question has never been presented in this court, although it was incidentally considered in a case wherein it was not presented because the offenses there considered were identical.

The question then is whether under a proper interpretation of the quoted provision it is necessary before imposing the increased penalty for a second conviction that the first and second convictions shall be for the identical offense denounced by this statute, or whether it is only necessary that the first conviction shall have been for a violation of any of the other provisions of this act, not excepted, although that charge was not identical with the second charge.

The whole Enforcement Act on its face manifests the purpose to provide for all such offenses and prescribe penalties therefor, and prescribe them in such way as would in the judgment of the general assembly bring about an effective enforcement of our constitutional amendment prohibiting the manufacture and sale of intoxicating liquors. It purports to deal with the whole subject of enforcement, and the penalties prescribed for the several offenses denounced by it were designed to bring about an effectual end to the evils of intemperance.

Keeping in mind therefore these clear purposes of the act, our duty is to interpret the language used in the act so as to reach the legislative purpose.

We find in the first place that the first section places the unlawful possession of liquor and the unlawful sale of liquor in the same class, and denounces them as kindred or similar offenses; and we find in the second section that the same penalty is prescribed for those two offenses. Then in that same section in prescribing the penalty for a second conviction it says, "For a violation of any provision of this act" the enhanced or increased penalty may be inflicted.

If the unlawful possession of liquor is by the general assembly placed upon a par with the unlawful sale of liquor, and the two offenses are denounced by the same section of the statute and to all intents and purposes are treated as similar or kindred offenses, and the penalty for the violation of each is fixed at the same, and the same section prescribing such penalty for the first conviction further provides that upon a second conviction for a violation of any provision of the act the increased penalty shall be imposed, it cannot be said with any degree of sound reason that the legislative purpose was to require a second conviction of the identical offense rather than a second conviction of a similar or kindred offense denounced by the same statute.

The purpose of the whole act was to prevent the unlawful manufacture and sale of intoxicating liquors, and to that end many offenses were constructed by the statute and placed upon a practical footing with the actual manufacture and sale, and the same penalties prescribed for such additional offenses. The plain purpose of the increased penalty was to deter the citizen from a second offense of any kind or nature that might interfere with the effectual enforcement of the act; if an individual may one month be guilty of one of the offenses designed to bring about that enforcement, and the following month of another, and so on, without subjecting himself to the increased penalty, the deterrent force of the provision for such penalty would thereby be weakened. A shrewd violator might go through the whole category of offenses denounced by this act, and being careful not...