104 Ky. 468 | Ky. Ct. App. | 1898
delivered tiie opinion of the court.
This prosecution is under an act approved March 26, 1886, to prohibit the sale of spirituous, vinous and malt liquors in Hart' county. The act was not to take effect or be in force until it was ratified and approved by a majority of the votes cast at an election to be held at the regular election on the first Tuesday in November, 1886. The election was held on the day named in the act, as shown by the certificate which was made, and the returns of the officers of the election who were required by law, to compare the polls and certify the result, show that a majority of the votes cast on the question as to whether the act should go in force were for it. The appellant sought to impeach that certificate by offering to prove that, at the regular November election in 1886, such number of votes were cast for candidates at that election, which showed that the votes cast to put the act in force was not a majority of those voting at the election, not the election on the question as to whether the act should go in force, but at an election held for the purpose of electing certain officers. There was no effort made to show that a majority of those voting upon the question as to whether the act should go in force did not vote therefor. The language of the act^(Acts 1885-86, p. 1061) clearly shows that a majority of those who might vote at the election held at the regular election in November, 1886, could ratify and put in force the act. The third section of the act provides that a majority of votes cast at the election provided for should put the act in force. The fourth section of the act provides that an “election shall be held” at the November election, 1886. Whilst the election to take the sense of the
The indictment charges that the defendant sold spiritu- - ous, vinous, and malt liquors in Hart county, etc. It Is contended that it charges three offenses, because it charges s that the appellant sold spirituous, vinous, and malt liq- - uors. It is also claimed that they are three offenses that; can not be united, because of the provisions of sections 12G. and 127 of the Criminal Code of Practice. Without going-into a discussion of the question as to whether or-not, as. an original question, this court should have given an interpretation to the sections of the Code, as insisted by counsel. for appellant, it is sufficient to say that this court in hundreds of cases has treated and regarded as valid in- ■ dictments charging defendants with having sold spirituous, vinous, and malt liquors. The court therefore regards the question raised by counsel as settled, adversely .to his contention.
We think the testimony introduced by-the Commonwealth was sufficient to allow the case to go to-the jury, to determine whether or not the so-called “bitters” were spirituous liquors.
It is contended that .under the act approved March 15v, 1898 (Acts 1898, p. 85), prohibiting the sale*, barter, or loan-of intoxicating beverages in any county; city,. town, district, or precinct in which the sale, etc.,, of' spirituous,., vinous, and malt liquors is or shall be.-prohibihaet in-accord—
It is claimed that, by reason of the fact that the penalty fixed in this act is less than that of the local act, that section of the local act denouncing the penalty is repealed, and as the act approved March 15, 1898, is in force, the court must take notice of that fact, and that the. appellant, if fined at all, should have imposed on him the penalty fixed in the repealing statute. If the offense for which the appellant was indicted was the same as the one for which the act of 1898, supra, denounces a penalty, and the terms of which mitigated the penalty which was imposed by the law in force at the time the offense was committed, still the appellant is not entitled to have imposed the penalty named in the new law. Section 465 of the Kentucky Statutes reads as follows: “No new law shall be construed to repeal a former law, as to any offense commited against the former law, nor as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever, to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter had shall conform, so far as practicable, to the laws in force
