Newton v. Commonwealth

• Decision Date: 20 April 1923
• Citation: 249 S.W. 1017,198 Ky. 707
• Parties: NEWTON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

249 S.W. 1017

198 Ky. 707

NEWTON v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 20, 1923

Appeal from Circuit Court, Pulaski County.

S Newton was convicted of having possession of liquor for the purpose of sale, and he appeals. Reversed.

See also, 197 Ky. 496, 247 S.W. 707.

Wm Waddle, of Somerset, for appellant.

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

CLARKE J.

Upon the evidence of C. A. Shoun that, in January, 1922, he bought of S. Newton one pint of liquor, the latter was indicted both for the sale and for having the same liquor in his possession for the purpose of sale. He was tried and convicted for the sale, and upon his trial in this case for having the same liquor in his possession for the purpose of sale, in which he was also convicted, he pleaded the former conviction as a bar. The only question raised by this appeal is whether or not the trial court erred in overruling this plea.

The evidence for the commonwealth upon both trials was the same, and consisted solely of the testimony of Shoun, which, in substance, was that he bought one pint of liquor from the defendant, that he never saw defendant have any other liquor, and only saw the pint as it was handed to him when he bought it. Besides, it was stipulated upon the trial "that the commonwealth did not show, and cannot show, any other liquor in the possession of the defendant than the pint aforesaid."

Our Constitution, as do most if not all others, provides in section 13 that no person shall be placed in jeopardy twice "for the same offense." Although denounced by the same section of chapter 81 of the 1920 Acts, the two offenses of selling and possessing for sale are unquestionably separate and distinct offenses, if committed at different times, even though the same liquor is involved in both transactions, but the narrow question now before us is: Is such possession at the time of the sale, as is necessarily an incident thereto, a separate and distinct offense from the sale? We think not, for, if so, then every sale is necessarily two separate offenses against the same sovereignty under a single statute.

Among the many rules that have been formulated by this court and others to assist in determining whether or not one or more prosecutions may be based upon a single act or transaction, one often approved by this court is that the commonwealth may not split a single act or transaction into two or more separate offenses, but where the single criminal act or transaction is sufficient of itself to prove more than one offense, an election must be made and a conviction or acquittal upon one charge is a bar to another prosecution based solely upon the same act or transaction. Hughes v. Commonwealth, 131 Ky. 502, 115 S.W. 744, 31 L. R. A. (N. S.) 693, and note.

But this rule is not applicable where a single act is...