Williams v. Commonwealth

• Decision Date: 22 January 1926
• Citation: 212 Ky. 495
• Parties: Williams v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

Page 495

212 Ky. 495

Williams v. Commonwealth.

Court of Appeals of Kentucky.

Decided January 22, 1926.

1. Criminal Law — Conviction Under Habitual Criminal Section of Prohibition Statute Not Sustainable, where Prior Offense Charged was Unlawfully Owning and Possessing of Still. — Where accused was indicted for unlawfully possessing intoxicating liquors under Ky. Stats., Supp. 1924, section 2554a-1, and in second paragraph of indictment it was charged that he had been convicted of prior offense of owning and possessing an unlawful still under section 2554a-4, held that a conviction under the habitual criminal section of the stutute, section 2554a-2, could not be sustained; felony punishment for second conviction as provided for in latter section not applying, where prior conviction was for unlawfully owning or possessing still.

2. Criminal Law — Offenses for which Sentence May be Imposed Under Habitual Criminal Section of Prohibition Statute Stated. — The offenses for which penitentiary sentence may be imposed under the habitual criminal section of the prohibition statute (Ky. Stats., Supp. 1924, section 2554a-2), are those of selling, bartering, giving away, keeping for sale, unlawfully possessing or transporting forbidden liquors, and one convicted of either of those offenses may receive the penitentiary sentence for a second conviction of either of the others.

Appeal from Whitley Circuit Court.

B.B. SNYDER for appellant.

FRANK E. DAUGHERTY, Attorney General, and GARDNER K. BYERS, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Reversing.

At the May, 1925, term of the Whitley circuit court the appellant, John D. Williams, was indicted charged with unlawfully possessing intoxicating liquors, an offense denounced by section 1 of chapter 33, Acts of 1922, page 109 (now section 2554a-1 of the 1924 supplement to Carroll's Kentucky Statutes).

In a second paragraph of the indictment it was charged that the defendant at the January term prior thereto was convicted of the offense of owning and possessing an illicit still which he committed since the taking effect of the statute and prior to the offense for which he was indicted and which itself is forbidden by section 4 of the act (now section 2554a-4 of the same supplement). Defendant's demurrer to the indictment was overruled with exceptions and upon the trial under the instruction of the court he was found guilty under the habitual criminal paragraph of section 2 of the act, upon which the court instructed the jury over defendant's objections and exceptions, and his punishment was fixed at confinement in the penitentiary for three years. From the judgment pronounced on the verdict after his motion for a new trial was overruled he prosecutes this appeal, urging as grounds for reversal, (1) that the court erred in submitting to the jury the punishment for a second conviction as prescribed in section 2 of the act, and (2), that the evidence failed to show that the possession of the liquor for which defendant was indicted was in Whitley county. It will not be necessary to determine ground (2), since we are convinced that ground (1) is well taken and must be sustained and that ground, if available, can be corrected upon another trial.

In support of ground (1) it is argued that the felony punishment for a second conviction as contained in section 2 of the act is not applicable where one of the convictions (which in this case was the first) was for the offense of owning and possessing an illicit still, as is denounced by section 4 of the act, and which argument we think is thoroughly sustained by the express provisions of the act.

Section 2 of the act, prescribing the punishment for the violation of any of its provisions, expressly excepts therefrom violations of any section for which there is a particular penalty...