Middleton v. Com.

• Decision Date: 13 November 1928
• Citation: 10 S.W.2d 812,226 Ky. 220
• Parties: MIDDLETON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

10 S.W.2d 812

226 Ky. 220

MIDDLETON v. COMMONWEALTH.

Court of Appeals of Kentucky

November 13, 1928

Appeal from Circuit Court, Harlan County.

Burrell Middleton was convicted of selling intoxicating liquors, and he appeals. Reversed, with directions.

F. M Jones, of Harlan, for appellant.

J. W Cammack, Atty. Gen., and Geo. H. Mitchell, Asst. Atty. Gen for the Commonwealth.

STANLEY C.

Omitting title and signature, the indictment under which the appellant, Burrell Middleton, was convicted is as follows:

"The Grand Jury of Harlan County, in the name and by the authority of the Commonwealth of Kentucky, accuses Burrell Middleton of the offense of selling spirituous, vinous, malt and intoxicating liquors, to Sam Jones, committed in the manner and form as follows, viz: The said Burrell Middleton in said county on the 29 day of November, 1927, and within one year next before the finding of this indictment, did unlawfully and willfully sell spirituous, vinous and malt liquors for other than sacramental, mechanical, medicinal or scientific purposes, against the peace and dignity of the Commonwealth of Kentucky."

A reversal of the judgment is sought on the ground of error in overruling the demurrer to the indictment, the defects alleged being that it does not describe the liquor sold as intoxicating, and the name of the purchaser is omitted from the descriptive part.

1. As authority for the first contention, reliance is had on the case of Vanmeter v. Commonwealth, 209 Ky. 465, 273 S.W. 36. The indictment in that case describes the liquor as "still beer" without alleging it to be intoxicating, and, although it was declared the courts will take judicial notice of the intoxicating quality of ordinary common beer, they will not do so as to a particular quality of beer which might or might not be intoxicating. In the instant case the substance the defendant was charged with selling was "spirituous, vinous and malt liquors," without particularizing.

In Middleton v. Commonwealth, 197 Ky. 422, 247 S.W. 41, it was held the word "liquor" was of such usual acceptation in the common language as to be synonymous with intoxicating liquor. In Brown v. Commonwealth, 198 Ky. 663, 249 S.W. 777, and Kenny v. Commonwealth, 211 Ky. 349, 277 S.W. 480, we construed the phrase "spirituous liquor" as sufficiently describing the character of liquor involved as intoxicating. Any one of common understanding is bound to know that the defendant was charged with selling intoxicating liquor in violation of the statute, and that is all that is required. Criminal Code, §§ 136, 137. The indictment in this respect is therefore sufficient.

2. It will be observed the name of the defendant's alleged customer is given in the accusation, but is omitted from the portion of the indictment usually referred to as the descriptive part. Sections 122 and 124 of the Criminal Code very definitely prescribe the essential requirements of an indictment, and section 123 lays down a form for the guidance of the draftsmen of indictments. With such explicit directions and their multitudinous interpretations it would appear that there ought to be little difficulty in drafting an indictment in an ordinary case. While we have no intention to depart from the modern rule of disregarding hypercritical and mere technical deficiencies in indictments, or to be out of harmony with the trend of liberal construction of such instruments by dispensing with ancient exactness and formality, nevertheless an indictment must substantially conform to established principles and rules of criminal pleading. The indictment in this case does not so conform.

It is now well settled, at least in this jurisdiction, that the name of the alleged purchaser of intoxicating liquor for beverage purposes must be stated in the indictment, unless unknown to the grand jury, in which event that...