Settles v. Com.

• Decision Date: 21 May 1943
• Parties: SETTLES v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

171 S.W.2d 999

294 Ky. 403

SETTLES v. COMMONWEALTH.

Court of Appeals of Kentucky

May 21, 1943

Appeal from Circuit Court, Jackson County; Franklin P. Stivers Judge.

Arthur Settles was convicted of unlawfully transporting intoxicating malt beer in violation of local option law, and he moves for an appeal.

Appeal granted, and judgment reversed with directions to grant a new trial.

Hector Johnson, of McKee, for appellant.

Hubert Meredith, Atty. Gen., and Frank A. Logan, Asst. Atty. Gen for appellee.

SIMS Justice.

The grand jury of the Jackson Circuit Court returned an indictment against appellant, Arthur Settles, charging him with unlawfully transporting intoxicating malt beer in Jackson County, where the local option law was in force, for other than sacramental, medicinal, scientific or mechanical purposes. Upon a trial he was convicted and his punishment fixed at a fine of $100 and imprisonment in the county jail for thirty days. He moves this court for an appeal and asks that the judgment be reversed on two grounds: (a) The court erred in overruling his motion for a directed verdict at the conclusion of the Commonwealth's evidence; (b) incompetent evidence was admitted against him.

It will be noted that the indictment does not charge a public offence. Section 2554c-18, K.S. (now KRS 242.230), provides that it shall be unlawful for any person in dry territory to "sell, barter, loan, give, procure for or furnish another, or keep or transport for sale [our italics], barter or loan, directly or indirectly, any alcoholic beverage". For the indictment to have charged appellant with a public offence it must have averred that he transported this beer for sale, loan or barter in dry territory. One may keep or transport intoxicating liquor for personal use in local option territory without violating the statute. Baker v. Com., 284 Ky. 92, 143 S.W.2d 842. It is true appellant did not demur to the indictment, but where no public offence is charged, the sufficiency of the indictment is raised by a motion of the accused for a directed verdict at the conclusion of the Commonwealth's evidence. Baker v. Com., supra; Howard v. Com., 285 Ky. 486, 148 S.W.2d 336; Rowe v. Com., 283 Ky. 367 141 S.W.2d 284.

The incompetent evidence complained of was that given by C. D Smith, Sheriff of Jackson County, and his deputy, John D Robinson, to the effect that at night while attempting to apprehend and arrest two deserters from the army they saw appellant drive to the edge of the highway in his covered truck and park it near a church. The officers had no search...