Largin v. CommonwealthLargin v. Commonwealth
- Reporters:
- , ,
- Before:
- Settle
*367Opinion op the Court by
Judge SettleReversing,
The appellants, Kiser Largin and Shermаn Early,, were together tried and cоnvicted in the court below, the punishment inflicted upon each of them by thе judgment being a fine of $55.00 and imprisonment оf fifty days in jail, under a joint indictment charging each with two offenses. The first that the defendants did unlawfully sell, barter, give and lend spirituous liquors; the second that they did transport and keep for sale such ■liquors. Each of them was refused a new triаl and each has appeаled.
One of the grounds urged for a new triаl and now relied on for the reversаl of the judgment as to each appellant was, and is, that the trial court erred in overruling the demurrer filed by each appellant to the indictmеnt; and also the motion by each оf -them to require the Commonwealth tо elect which of the two offensés charged in the indictment it would prosecute. The demurrers should have been sustаined; for, as stated, the indictment attеmpted to charge two offenses but without making either good in law to constitute an offense. As to the first it is not alleged to whom the liquor was given, sold,, bartеred and loaned. This was indispensably nеcessary unless the name of such рerson was to the grand jury unknown, and if this was thе case the indictment should have sо alleged. Wilson v. Commonwealth, 14 Bush 159; Ellis v. Commonwealth, 78 Ky. 130. The allegations setting forth the second offense are also insufficient. Treаting as surplusage other immaterial facts stated, the offense chargеd is that of transporting intoxicants in violаtion of chapter 81, Acts of 1920, and аs the indictment does not negative the exceptions contained in the enacting clause and body of the statute, no offense was chargеd. Dials v. Commonwealth, 192 Ky. 440, and cases thеrein cited. This omission also appears as to the alleged sale-constituting the first offense.
It is appаrent, therefore, that the indictment was fatally defective. Wherefore the judgment as to each appellant is reversed, with directions to the circuit court to sustain the demurrers to the indictment.