Rickman v. Commonwealth

• Decision Date: 26 September 1922
• Citation: 195 Ky. 715
• Parties: Rickman v. Commonwealth.
• Court: Kentucky Court of Appeals

195 Ky. 715

Rickman v. Commonwealth.

Court of Appeals of Kentucky.

Decided September 26, 1922.

Appeal from McCracken Circuit Court.

REED & BURNS for appellant.

CHAS. I. DAWSON, Attorney General, and THOS. B. McGREGOR, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE SAMPSON — Reversing.

Appellant Rickman was indicted and convicted in the McCracken circuit court of the offense of manufacturing intoxicating liquors in a manner not provided by law. The specifications of the indictment read: "The said Jim Rickman in the said county of McCracken, on the 5th day of January, 1922, and within one year before the finding of this indictment, did, unlawfully, manufacture spirituous, vinous, malt and intoxicating liquors, to-wit: whiskey, brandy, wine, alcohol and mixtures thereof except for sacramental, medicinal, scientific and mechanical purposes, against the peace and dignity of the Commonwealth of Kentucky." To this indictment Rickman filed a general demurrer which the court overruled. He excepted to the ruling of the court upon the demurrer, and that is the sole ground upon which he seeks a reversal of the judgment in this court. Appellant contends that the exceptions contained in the statute under which the indictment is drawn is not negatived and the indictment does not show that appellant did not come within one of the four exceptions provided by the act. The statute reads: "It shall be unlawful to manufacture, sell, barter, give away or keep for sale or unlawfully have in possession or transport spirituous, vinous, malt or intoxicating liquors except for sacramental, medicinal, scientific or mechanical purposes in the Commonwealth of Kentucky." The indictment follows the language of the statute but does not negative the exceptions "for sacramental, medicinal, scientific or mechanical purposes." It has long been a general rule in this jurisdiction that an exception contained in the sentence or paragraph of a criminal statute which creates and describes an offense must be negatived in the indictment. The exceptions in the statute under consideration is contained in the sentence and paragraph, and as held in the case of Dials v. Commonwealth, 192 Ky. 440; Walker v. Commonwealth, 192 Ky. 257; Lovelace v. Commonwealth, 193 Ky. 425; Meeks v. Commonwealth, 192 Ky. 690, must be negatived.

The Commonwealth insists that the averment in the indictment is sufficient because it follows the language of the statute, but this position is...