McKiney v. Commonwealth
| Decision Date | 25 April 1924 |
| Citation | 202 Ky. 757,261 S.W. 276 |
| Parties | MCKINEY v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jackson County.
Grant McKiney was convicted of a second violation of the prohibition law, and appeals. Reversed and remanded.
L. C Little, of McKee, for appellant.
Frank E. Daugherty, Atty. Gen., and Charles F. Creal, Asst. Atty Gen., for the Commonwealth.
Despite his plea of "not guilty," appellant was on January 14, 1924, found guilty of a second violation of the prohibition law, and his punishment fixed at confinement in the penitentiary for one year. His motion for new trial was overruled, and he appeals.
The offense charged in the indictment appears from the evidence to have been committed in February, 1922. The language of the indictment follows closely the language of the act of March 29, 1918 (Laws 1918, c. 168), which act had then been superseded by the act of March 23, 1920 (Laws 1920, c. 81) except as to unlawful possession of moonshine stills. See Brent v. Commonwealth, 194 Ky. 504, 240 S.W. 45.
The trial court, however, treated the indictment as charging the appellant with a violation of the act of March 23, 1920, and instructed the jury under that act. The indictment contains two counts, in the first of which the defendant is charged with owning, possessing, and operating a moonshine still, and aiding, assisting, abetting, encouraging, and harboring others in the operation of said still, and in the second he is charged with having previously been convicted of owning possessing, and operating a moonshine still. No bill of particulars was asked for, no demurrer was filed, and no motion made to require the commonwealth to elect which of the offenses charged in the indictment it would prosecute.
The evidence shows that in the month of February, 1922, the sheriff and the jailer of Jackson county were looking for an illicit still, and near the top of a cliff, about 250 or 300 yards from the appellant's house, they found what they termed a "still site," and about 200 or 300 yards from there they found some "singlings," as they termed them. They followed some tracks from the "still site" to the appellant's "chip yard." They also followed some tracks from appellant's house down a hill, and down an old path that had been used by the public for 40 years, and about 150 yards from there they found some "malt corn" concealed under some stones, and this was nearer the appellant's house than any other house but there is no proof that any of these things were situated on appellant's land, or upon land over which he had any sort of control. At the appellant's house they found appellant and a man...
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...the fact of former conviction. Singer v. United States, 3 Cir., 278 F. 415; Thompson v. State, 66 Fla. 206, 63 So. 423; McKiney v. Com., 202 Ky. 757, 261 S.W. 276. 'In State v. Livermore, 59 Mont. 362, 196 P. 977, it was held that there must be proof of a former conviction on a charge of se......
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...the fact of former conviction. Singer v. United States (C. C. A.) 278 F. 415; Thompson v. State, 66 Fla. 206, 68 So. 423; McKiney v. Com., 202 Ky. 757, 261 S. W. 276. In State v. Livermore, 59 Mont. 362, 196 P. 977, it was held that there must be proof of a former conviction on a charge of ......
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