Middleton v. Commonwealth

• Decision Date: 17 April 1923
• Citation: 198 Ky. 626,249 S.W. 775
• Parties: MIDDLETON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

249 S.W. 775

198 Ky. 626

MIDDLETON v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 17, 1923

Appeal from Circuit Court, Harlan County.

Calvin Middleton was convicted of unlawfully selling intoxicating liquor, and he appeals. Affirmed.

J. B Snyder, of Harlan, for appellant.

Chas I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen for the Commonwealth.

SETTLE J.

The appellant, Calvin Middleton, was indicted February 4, 1922, by the grand jury of Harlan county for the offense of unlawfully selling intoxicating liquor, in violation of chapter 81, § 1, Acts General Assembly 1920. On his trial, which occurred at the November term, 1922, of the Harlan circuit court, the jury returned a verdict finding the appellant guilty of the offense charged in the indictment, and fixing his punishment at a fine of $200 and imprisonment of 60 days in jail. He was refused a new trial, and has appealed from the judgment of conviction.

The only ground relied on by the appellant for the reversal sought of the judgment is error alleged to have been committed by the trial court in refusing to sustain, or submit by proper instruction to the jury, his plea of a former trial and acquittal, interposed on the trial as a bar to his prosecution for the offense charged in the indictment, in which it was alleged that he was tried and acquitted "on said charge" at a previous term of the Harlan circuit court on the testimony of the same witness who "testified as to the said facts as contained in this indictment." It appears, however, from the bill of evidence contained in the record, that the offense for which he was indicted, and upon which he was, as alleged in the plea in bar, previously tried and acquitted, was that of unlawfully transporting intoxicating liquor; whereas, in the instant case, the offense charged in the indictment, and of which the appellant was convicted, was, as stated in the beginning of the opinion, that of unlawfully selling intoxicating liquor; i. e., making a sale of such liquor for other than sacramental, medicinal, mechanical or scientific purposes. And it is patent from the provisions of chapter 81, § 1, Acts 1920, under which both indictments were found, that the offenses in question, were separate and distinct offenses; for by those provisions it is declared an offense to sell, keep for sale, have in possession, or transport spirituous, vinous, or malt liquors not for sacramental, medicinal, mechanical or scientific purposes.

Manifestly each of the acts denounced, committed in the manner indicated, would constitute a separate and distinct offense, though the penalty provided for the commission of each is the same. Hence there would seem to be no escape from the conclusion that neither the acquittal nor conviction by trial of a defendant charged by indictment with the offense of unlawfully transporting intoxicating liquor in violation of the statute, supra, would legally operate as a bar to his subsequent trial or conviction in a prosecution under an indictment charging him with the offense of...