Mobley v. Com.

Decision Date08 February 1921
Citation227 S.W. 584,190 Ky. 424
PartiesMOBLEY v. COMMONWEALTH.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Carter County.

Charles Mobley was convicted of selling intoxicating liquor in local option territory, and he appeals. Affirmed.

Theobald & Theobald, of Grayson, for appellant.

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

SETTLE J.

This appeal is prosecuted from a judgment of the Carter circuit court entered upon a verdict finding the appellant, Charles Mobley, guilty of procuring for and selling Bill James spirituous, vinous, and malt liquors, in territory where local option was in force, and fixing his punishment at a fine of $60, and 10 days' confinement in jail

The indictment contained much surplusage, but sufficiently, we think, charged the offense of selling such liquors in violation of Kentucky Statutes, § 2557, though improperly joining two sales, each to a different person, in the one indictment. Because of this defect of misjoinder of offenses the trial court should have sustained the appellant's demurrer to the indictment; but, as the commonwealth elected to prosecute appellant for the offense of selling to James, the error of the court in overruling the demurrer was not prejudicial to him, for the election compelled the treating of any other offense or offenses charged in the indictment as surplusage. Ellis v. Commonwealth, 78 Ky. 133.

We do not understand that the appellant complains of the overruling of the demurrer to the indictment, but he contends: (1) That the indictment is otherwise duplicitous in embracing offenses denounced by several different statutes; (2) that the verdict is flagrantly against the evidence; and (3) that the court did not properly instruct the jury. The first of these contentions may again be answered by saying that, stripping the indictment of all surplusage, as seems to have been done on the trial by confining the evidence to the selling and furnishing of liquor by appellant to James, the commonwealth was limited to an offense under section 2557, Ky. Stats. The second contention cannot be sustained, for the evidence was sufficient to support the verdict. As furnished by the testimony of the witness James, it conduced to prove that appellant with one Gallion was in possession of several quarts of moonshine whisky, which he admitted to James was contained in saddle pockets belonging to him; and, when asked by James whether he could sell or find him a quart of whisky appellant conducted him to Gallion, and upon reaching the latter appellant drew from under a bank where it was concealed the saddle pockets containing the whisky, from which James...

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40 cases
  • Wilder's Adm'r v. Southern Mining Co.
    • United States
    • Kentucky Court of Appeals
    • 19 Mayo 1936
    ... ... evidence is often more conclusive and satisfactory than is ... positive and direct testimony. Smith v. Com., 140 ... Ky. 599, 131 S.W. 499; King v. Com., 143 Ky. 125, ... 127, 136 S.W. 147; Wendling v. Com., 143 Ky. 587, ... 137 S.W. 205; Mobley v ... ...
  • Wilder's Adm'R v. Southern Mining Co.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 19 Mayo 1936
    ... ... Smith v. Com., 140 Ky. 599, 131 S.W. 499; King v. Com., 143 Ky. 125, 127, 136 S.W. 147; Wendling v. Com., 143 Ky. 587, 137 S. W. 205; Mobley v. Com., 190 Ky. 424, ... ...
  • Mathews v. Commonwealth, 97-SC-000053-MR
    • United States
    • United States State Supreme Court — District of Kentucky
    • 25 Marzo 1999
  • Perry's Adm'X v. Inter-Southern L. Ins. Co.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 7 Febrero 1933
    ... ... 599, 131 S.W. 499; King v. Commonwealth, 143 Ky. 125, 127, 136 S.W. 147; Wendling v. Commonwealth, 143 Ky. 587, 137 S.W. 205; Mobley v. Commonwealth, 190 Ky. 424, 227 S.W. 584; Bowling v. Commonwealth, 193 Ky. 642, 647, 237 S.W. 381; Daniels v. Commonwealth, 194 Ky. 513, 514, 240 ... ...
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