Commonwealth v. Jarvis & Williams

| Ky. Ct. App. | Apr 19, 1905

Opinion by

Judge O’Rear

Reversing.

Appellees were indicted and tried under the charge of unlawfully and wilfully selling’ by retail a beverage, liquid mixture, or decoction which causes or produces intoxication, Which acts were alleged to have been committed in territory in which the sale of spirituous, vinous and malt liquors is prohibited in accordance with the local option law. A demurrer was sustained to the indictment.

The indictment is drawn in the language of the statute. Ordinarily, for a «purely statutory offense, as this is, the employment of the language of the statute is deemed sufficiently explicit and certain to satisfy the requirements of sec. 124, Cr. Code Prac. The main criticism made of the indictment is that it charges one of three offenses by charging them in the disjunctive. In Jones v. Commonwealth, 104 Ky., 468" court="Ky. Ct. App." date_filed="1898-10-08" href="https://app.midpage.ai/document/jones-v-commonwealth-7133932?utm_source=webapp" opinion_id="7133932">104 Ky., 468; 20 Ky. Law Rep., 651; 47 S.W., 328" court="Ky. Ct. App." date_filed="1898-10-08" href="https://app.midpage.ai/document/jones-v-commonwealth-7133932?utm_source=webapp" opinion_id="7133932">47 S. W., 328, it was held that an indictment charging the accused with selling “spirituous, vinous and malt liquors” is not open to the objection that- it charges three offenses. In Rush v. Commonwealth, 47 S. W., 586; 20 Ky. Law Rep., 775, sec. 2557a; Ky. Stats., 1903, under which the indictment in this case was framed, was construed. It was there said: “We are of opinion that the G-eneral Assembly intended to, and we so- hold they did, in passing chapter 30 (Acts 1898, p. 84), declare that to be an offense that theretofore had been no offense or had been doubtful.” Up to the passage of that act, which is now section 2557a, there was no statute in this State punishing the sale of a liquid mixture or decoction which produced intoxication, unless it-was spirituous, vinous or malt liquor. Continuing, the court further said: “It is said that the term ‘any intoxicating beverage’ would certainly and necessarily include spirituous, vinous and malt liquor, even if the other two terms, “liquid mixture or decoction,” did hot. We do not think it was' so intended. The clear meaning and intention' of this act was to provide a penalty for the sale in prohibited districts of the various nostrums, bitters, and such like intoxicants sold, and of which it is so difficult to show the ingredients, or whether it comes under the strict definition of spirituous, vinous os. malt liquors. This act was to embrace all other intoxicants of a liquid nature.” It is not necessary, under the statute, to name the decoction or liquid mixture which may produce the intoxication. It is enough if the tiling sold is a liquid mixture which produces or would produce intoxication, and is sold in districts where the local option law is in force. The terms “beverage, liquid mixture, or decoction” are used interchangeably, each synonomous with the other; all describing the same thing. We are of opinion that the indictment was good under the statute, and that the demurrer should have been overruled.

Therefore the judgment is reversed, and the cause remanded, with directioiis to overrule the demurrer, and for further proceedings consistent herewith.