202 Ky. 181 | Ky. Ct. App. | 1924
Opinion of the Court by
Reversing.
Appellant was indicted for the offense of “owning, harboring, operating and having in his possession an
The present statute merely makes it unlawful for any person “to buy, bargain, sell, loan, own, have in possession or knowingly transport an illicit still,” section 4, chapter 33, Acts 1922, and neither it nor any other statute contains any provision making it an offense “to harbor a moonshine still. ” It is therefore clear that after the election by the Commonwealth, the facts stated in the indictment did not constitute a public offense within the jurisdiction of the court. That being true, the trial court without motion should have arrested the judgment. Section 278, Criminal Code.
This conclusion makes it unnecessary to consider the grounds relied on for a new trial.
On the return of the case the Commonwealth will be permitted to make a different election.
Wherefore the judgment is reversed and the cause remanded, with directions to arrest the judgment and for such further action as the ends of justice may require.