195 Ky. 722 | Ky. Ct. App. | 1922
Reversing.
The appellant, Joe Ballou, was indicted for unlawfully transporting intoxicating liquors. A trial resulted in a verdict of guilty, and a judgment of the court in accordance therewith. The grounds for a new trial being overruled, he has appealed and urges as reasons for reversal of the judgment, (1) that the court erred in overruling a general demurrer to the indictment, and (2) that the evidence was insufficient to support the verdict, and a peremptory instruction to find him not guilty should have been given.
(a) The ground upon which it is insisted that the indictment is not sufficient, and does not state a public offense, is that it does not allege that the offense charged was committed within one year before the finding of the indictment. The offense charged in the indictment is a misdemeanor denounced by section 2554a-l, Kentucky Statutes, 1922, and time is of the essence of the offense to the extent that it is necessary to support a prosecution, that the offense be committed within one year before the finding of the indictment. Section 1138, Kentucky Statutes. The indictment was found and returned on the 22nd day of February, 1922, and the time of the commission of the offense as alleged in the indictment was “on the 25th day of January, 1922, before the finding of this indictment.” This objection to the sufficiency of an indictment for a misdemeanor is not new, and the question has been decided adversely to the contention of appellant several times. Stamper v. Commonwealth, 102 Ky. 33; Commonwealth v. C. B. Cook Co., 102 Ky. 288; Commonwealth v. Traylor, 20 K. L. R. 97. Upon demurrer the court must accept the allegations of the indictment as true, and a date being fixed in the indictment whereon the offense is alleged to have been committed which shows that the offense was committed within twelve months before the finding of the indictment, makes the indictment charge a public offense and sufficient upon demurrer, upon that ground, although under such an indictment a conviction may be had when the proof shows that the offense was committed upon a date other than that alleged, if the date of the commission of the offense was within twelve months before the finding of the indictment.
(b) Touching the second ground urged for a reversal a consideration of the evidence must be had. The
The evidence, however, did not prove the commission of the offense charged in the indictment, within twelve months before' it was returned. It is just as necessary to prove the essential ingredients of an offense, as it is to allege them in the indictment. The statement that the offense was committed during the year, 1921, did not prove that it was committed within twelve months before the indictment was found on the 22nd day of February, 1922, as it could have been committed during the year, 1921, and yet not
The judgment is therefore reversed and cause remanded for another trial, upon principles not inconsistent with this opinion.