Commonwealth v. Helback

101 Ky. 166 | Ky. Ct. App. | 1897

JUDGE WHITE

delivered the opinion oe the court.

The appellee, N. Helback, was, at the July term, 1896, of the Hancock Circuit Court, indicted by the grand jury. The indictment accuses him of the offense of unlawfully selling vinous liquors without a license so to do. The indictment charges as follows: “That the defendant did on - day of-, 1896, and within twelve months last past in said county of Hancock, unlawfully sell vinous liquors, without a license to do so, by selling wine to Wm. Overby, to be drunk on the premises of the defendent, which wine was so drunk on defendant’s premises with his knowledge and consent that it was to be so drunk when he made the sale.’* The defendant demurred to the last clause of the indictment and the court overruled the demurrer and defendant excepted. We are of the opinion that the indictment is sufficient, and the court properly overruled the demurrer. The averments in the indictment that the wine was sold to be drunk and was drunk'on the premises were unnecessary, but were not prejudicial to defendant. The indictment set forth clearly the offense with which defendant was charged, that of selling vinous liquors without a license so to do.

■ The evidence shows that defendant sold wine to Wm. Overby at his butckershop or residence in the town of Hawesville, in Hancock county, and within twelve months before the finding of the' indictment, which wine was then and there drunk by Overby and another in the presence and on defendant’s premises, and without his objection. The defendant relied for his defense on a license issued by the county court of Hancock county, issued to him at a special4 or called term of the Hancock County Court on the 7th day of April, 1896. The license issued by the county court was offered to be read to the jury in evidence, the Commonwealth objected and the court overruled his objection and permitted the paper to be read to the jury and the Commonwealth’s attorney excepted. By this license the defendant was, by the payment of -$25, licensed to sell wine at his place of business on Main Cross street, Hawesville, Ky., in quantities not less than one quart, etc., from the 7th day of April, 1896, to the 7th day of April, 1897, and the question is, does the license issued by the county court protect defendant in the sale of vinous liquors? Hawesville is a town of the fifth class, and, by the charter of towns of that class, the municipal authorities of the town have the exclusive authority to grant retail license to sell spirituous liquors within the corporation, and a license issued by the county court does not protect defendant, unless he also has license from the town authorities. There was no proof offered by defendant showing that he had procured license from the town of Hawesville. If defendant had procured license from the town of Hawesville then his license from the county court would have been a complete protection to him in this prosecution, but, having failed to show he had obtained a license from the town of Hawesville, the court should have rejected the paper offered as evidence. To obtain the license to retail from the county court in towns having the authority to grant retail license it is not necessary to make the application at a regular term of the county court, but it may he made and granted at a called term — not so where the licenses are granted to parties outside the towns having authority to grant license — then the application must be made after notice at a regular term of the county court.

The judgment of the circuit court is reversed, with directions to set the verdict and judgment aside and for a retrial of the prosecution.