13 S.W.2d 1026 | Ky. Ct. App. | 1929
Reversing.
The appellant, Etta Alford, was indicted in the Clark circuit court for a second violation of the prohibition *733 laws, and upon her trial was convicted and her punishment fixed at confinement in the penitentiary for a period of three years. As grounds for reversal, it is urged that the indictment is duplictous, and that the court erred in admitting evidence of crimes other than the one submitted to the jury.
The indictment charges that appellant sold intoxicating liquors to one Robert Clark on eight different days during January and February, 1927, the exact dates being set out in the indictment. The appellant demurred to the indictment, and also filed a motion to require the commonwealth to elect upon which one of the charges it would prosecute her. Both the demurrer and the motion to elect were overruled, but, when the commonwealth introduced the witness, Robert Clark, he first testified to a sale on January 13, 1927, and, when the commonwealth offered to prove other sales, the court ruled that it had elected to try the appellant for the sale made on January 13, 1927, and the instructions were limited to that sale. The motion to require the commonwealth to elect should have been sustained, but the ruling of the court, that the sale, concerning which evidence was first introduced by the commonwealth, was the one for which appellant was being prosecuted, cured this error. McCreary v. Commonwealth,
The court permitted the commonwealth, however, to introduce evidence tending to show that appellant had sold liquor to the prosecuting witness on other days than January 13, 1927. This was error. It is insisted for the commonwealth that this evidence was admissible under one of the exceptions to the general rule that, when one is being tried for a crime, evidence of other crimes is inadmissible. The exceptions to the general rule disallowing such testimony are where proof of other crimes is necessary to show (1) the identity of the accused as the person who committed the crime proved: (2) guilty knowledge; (3) particular criminal intent; (4) malice or motive; (5) that the crime of which he is accused, and for which he is being tried, is a part of a plan or system of criminal actions. The facts of this case bring it within none of these exceptions. Proof of the other sales was unnecessary to identify the accused or to show guilty knowledge in her or particular criminal intent or malice or motive, and it certainly did not tend to show that she *734
had any peculiar plan or system of selling whisky. Kirby v. Commonwealth,
There is another exception to this general rule in cases of unlawful sexual intercourse, where it is held that proof of other acts of the parties indicating illicit relations may be admitted as corroborative of the testimony offered to prove the particular offense charged in the indictment. Cases in which such an exception to this general rule has been approved are: Smith v. Commonwealth,
However, the reason for this exception is limited to cases involving unlawful sexual intercourse, and it should not be extended to other classes of cases. In Herring et al. v. Commonwealth,
It follows that the admission of the evidence complained of was prejudicial error, and the judgment is reversed, and cause remanded for a new trial consistent with this opinion.