Walker v. Commonwealth

• Decision Date: 24 June 1921
• Citation: 232 S.W. 617,192 Ky. 257
• Parties: WALKER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

232 S.W. 617

192 Ky. 257

WALKER v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 24, 1921

Appeal from Circuit Court, Madison County.

Owen Walker was convicted of unlawfully selling spirituous liquors in violation of the Prohibition Act, and he appeals. Reversed and remanded.

R. C Oldham and John Noland, both of Richmond, for appellant.

Charles I. Dawson, Atty. Gen., and Charles W. Logan, Asst. Atty Gen., for the Commonwealth.

SETTLE J.

This is an appeal from a judgment of the Madison circuit court entered upon a verdict finding the appellant, Owen Walker guilty under an indictment charging that he unlawfully sold on February 28, 1921, spirituous liquors, in violation of an act passed by the General Assembly in 1920, known as the "prohibition statute," and further charging that he had theretofore--

"been tried and convicted for the unlawful sale of spirituous, vinous, and malt liquors by judgment rendered against him in the Madison circuit court on the 27th day of February, 1917, and said judgment had not been appealed from, set aside, or modified."

The punishment inflicted upon appellant by the verdict of the jury and judgment was confinement in the penitentiary for one year.

Appellant filed six grounds in support of his motion for the new trial refused him in the court below, and these grounds are relied on in this court for a reversal of the judgment appealed from. As the first and sixth grounds in effect raise the same question, they will be considered together. The first makes complaint of the action of the trial court in overruling appellant's demurrer to the indictment; the sixth, of its refusal, on his motion, at the conclusion of the evidence, to peremptorily instruct the jury to return a verdict of acquittal.

It is insisted by counsel for appellant that both the demurrer and motion should have been sustained; the first, because the offense charged in the indictment was and is not a felony; the second, because the evidence failed to prove him guilty of the offense charged. It is said in the brief of counsel that the trial court thought it was found under section 2557b3, Ky. Stats. (Act March 23, 1916), which seems to be borne out by the fact that the jury were instructed, if they found appellant guilty, to inflict upon him the punishment prescribed by that section, which provides that--

"On the second or any subsequent conviction for a violation of said act, or any of its amendments, committed after a former conviction for a violation of said act, or any of its amendments, the defendant shall be confined in the penitentiary for not less than one nor more than two years."

The act of 1916 had for its object the better enforcement of the "local option" law then in force; and the constitutionality of its provision respecting increase of penalty for a second conviction referred to was sustained by us in Armstrong v. Commonwealth, 177 Ky. 690, 198 S.W. 24, in which we held that a defendant could be convicted as for a felony under the provision in question, although his first conviction might have been had under a local option law in force prior to the act of 1916. This was upon the ground that the later act was a revived and continuing statute, and related back to the previously existing local option laws of the state. In the case at bar, while the first conviction of appellant which the trial court held authorized the jury to find him guilty in this case of a felony, upon proof of his guilt of the sale of liquor charged in the indictment, occurred in 1917, and, under the act of 1916, the second sale of liquor charged took place February 28, 1921, which was after the Prohibition Act of 1920 (Acts 1920, c. 81) went into effect. These facts are shown by the allegations of the indictment and established by the proof.

It is the contention of appellant that the act of 1920 was intended by the Legislature to supersede all other anti-liquor laws of the state, and such is its effect; and that, in order to convict appellant of a felony resulting from a second sale of liquor and a prior conviction for a former sale, the prior or first conviction must have been obtained after the law of 1920 went into effect. We think this contention sound for the following reasons:

First. The title of the act shows that it was intended to supersede all others on the same subject. Its language is as follows:

"An act to prohibit and provide penalties for the manufacture, sale, transportation or other disposition of spirituous, vinous, malt or intoxicating liquors except for sacramental, medicinal, scientific or mechanical purposes in the commonwealth of Kentucky and to regulate the manufacture, sale and transportation of alcohol for nonbeverage purposes thereunder."

Section 2 of the act provides:

"Upon a second conviction for a violation of any provisions of this act, except sections 11, 15 and 20 to 31, inclusive, the defendant or defendants, if persons, shall be confined in the penitentiary for not less than one year, nor more than three years, and for the third and each subsequent conviction, the

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