Potter v. Commonwealth

• Decision Date: 22 April 1924
• Citation: 261 S.W. 256,202 Ky. 710
• Parties: POTTER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

261 S.W. 256

202 Ky. 710

POTTER v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 22, 1924

Appeal from Circuit Court, Pike County.

Ira Potter was convicted of operating a moonshine still, and appeals. Reversed and remanded.

Picklesimer & Steele, of Pikeville, for appellant.

Frank E. Daugherty, Atty. Gen., and Gardner K. Byers, Asst. Atty. Gen., for the Commonwealth.

CLAY, J.

The grand jury of Pike county returned an indictment against Ira Potter, charging him with the "offense of unlawfully manufacturing, selling, bartering, possessing, giving away, keeping for sale, and transporting intoxicating liquor." He demurred to the indictment, and the commonwealth elected to try him "for operating a moonshine still." The court instructed the jury to find him guilty if they believed from the evidence to the exclusion of a reasonable doubt that he, in Pike county and within 12 months before the finding of the indictment, "operated a moonshine still, or engaged in the manufacture of whisky, or helped to manufacture whisky." He was found guilty, and his punishment fixed at a fine of $100 and 60 days in jail. From the judgment based on the verdict this appeal is prosecuted.

Under the present statute there is no such offense as operating a moonshine still. Spriggs v. Commonwealth, 200 Ky. 559, 255 S.W. 108. As the commonwealth elected to try appellant, and the instruction authorized his conviction for an offense unknown to the law, and not even charged in the indictment, the judgment cannot be upheld. On the return of the case the commonwealth will be permitted to make another election.

Judgment reversed, and cause remanded for proceedings consistent with this opinion.