Stamper v. Com.

• Decision Date: 15 October 1897
• Citation: 42 S.W. 915,102 Ky. 33
• Parties: STAMPER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

42 S.W. 915

102 Ky. 33

STAMPER v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 15, 1897

Appeal from circuit court, Carter county.

"To be officially reported."

William Stamper was convicted of unlawfully selling liquor, and appeals. Affirmed.

John L Scott & Son and J. D. Jones, for appellant.

W. S Taylor, for the Commonwealth.

LEWIS C.J.

Appellant was indicted and convicted for unlawfully selling spirituous liquor contrary to "An act to regulate the selling procuring for or giving of spirituous, vinous or malt liquor or any intoxicating drinks in the county of Carter," approved March 18, 1886. He was charged in the indictment with so selling to both Davis and Scott, and counsel argue that the demurrer ought for that reason to have been sustained. But, conceding that two distinct offenses were thus improperly charged in the same indictment, the defect was cured by the election made on the record by the commonwealth's attorney before the demurrer was disposed of, to prosecute him only for selling to Davis.

Another objection is made on account of the omission of the formal statement that the alleged offense was committed within 12 months before the indictment was found. The reason for requiring that statement in an indictment for a misdemeanor is that the plea of limitation should be by the commonwealth anticipated, and made to appear, prima facie, precluded. But as the indictment in question was found and returned November 9, 1896, and contains a specific averment that the alleged offense was committed November 2, 1896, no further statement on the subject was needed.

Appellee did not in person, on the day named, deliver liquor to Davis and receive from him pay therefor. But he owned and controlled a house wherein liquor was clandestinely and unlawfully sold. In the rear part of that house was a partition wall, on one side of which Davis, the buyer, stood, and on the other side was stationed the hidden seller. In the wall was a hole, through which a small box, containing the money of Davis, was pulled, and in a short time it was pushed back to him containing in exchange a bottle of whisky. Such facts being proved, the lower court was fully justified in instructing the jury upon the hypothesis that appellant, if not in person, by his authorized agent, sold the liquor as charged.

It was admitted on the trial that in June, 1886, an election was duly held in pursuance of the statute mentioned, when a majority of votes were cast against the selling of spirituous, vinous, or malt liquors in Carter county; and consequently such selling in that county became thereafter unlawful. But the question is here presented whether that statute had been repealed, and prosecutions under it rendered ineffectual, at the time the alleged offense was committed and the determination of it depends upon the proper meaning of section 61 of the constitution, as follows: "The general assembly shall by general law provide a means whereby the sense of the people of any county,...