Spriggs v. Commonwealth

• Decision Date: 19 October 1923
• Citation: 200 Ky. 559,255 S.W. 108
• Parties: SPRIGGS ET AL. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

255 S.W. 108

200 Ky. 559

SPRIGGS ET AL. v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 19, 1923

Appeal from Circuit Court, Martin County.

Lora Spriggs and another were convicted of operating or assisting in the operation of an illicit or moonshine still, and they appeal. Reversed.

J. B Clark, of Inez, for appellants.

T. B McGregor, Atty. Gen., Lilburn Phelps, Asst. Atty. Gen., John W. Wheeler, of Paintsville, and Jasper Preece, of Inez, for the Commonwealth.

SAMPSON C.J.

The two appellants and J. C. Spriggs were indicted in the Martin circuit court and found guilty of the offense of operating or assisting in the operation of an illicit or moonshine still and each fined $300 and adjudged to serve 90 days in the county jail. Of the several grounds assigned for a reversal of the judgment it will be necessary for us to consider only two: (1) The sufficiency of the indictment; (2) the competency of the evidence introduced by the commonwealth.

1. The indictment in charged to be duplicitous. It charges the offense (a) of having in possession a moonshine still; and (b) operating an illicit or moonshine still. Appellants demurred to the indictment, but this demurrer was overruled, when the commonwealth elected to prosecute appellants on the charge of "operating a moonshine still." The statute does not denounce as a public offense "operating a moonshine still." The recent prohibition act (Laws 1922, c. 33, § 4) provides that "it shall be unlawful for any person to buy, bargain, sell, loan, own, have in possession or knowingly transport an illicit still," and provides a penalty for a violation of either of three provisions. The seventh section of the same act defines the words "illicit still." Roberts v. Com'th, 199 Ky. 28, 250 S.W. 130.

Had the commonwealth elected to prosecute appellants for the offense of having in possession a moonshine still, the indictment would have been good, but having elected to prosecute appellants for doing an act which is not denounced by the statutes as an offense, the indictment is wholly insufficient to sustain a conviction. Although it cannot be said to be duplicitous. As the judgment must be reversed, the commonwealth may re-refer the indictment to the grand jury, or it may elect to try appellant under the old indictment upon the charge of "unlawfully having in possession a moonshine still."

2. The commonwealth relied for a conviction upon the evidence of one Johnson, who testified that on divers occasions during the winter of 1922, about February, he went with the appellants and J. C. Spriggs to a moonshine still located on a certain branch in Martin county, where the appellants engaged in operating a still for the manufacture of intoxicating liquors; that appellant helped to build the fires and carry the wood, and do such other things as he was requested to do about the still; that he had no interest in the distillery, except that he wanted liquor to drink; that all of the persons named in the indictment were at the distillery when he was there, and they all assisted in operating it. Clearly he was an accomplice. Commonwealth v. Stringer, 195 Ky. 717, 243 S.W. 944; Dennison v. Comwealth, 198 Ky. 380, 248 S.W. 880. Our Criminal Code of Practice, § 241, provides:

"A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect

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