| Ky. Ct. App. | Jan 10, 1922
Reversing,
The appellants, Kiser Largin and Sherman Early,, were together tried and convicted in the court below, the punishment inflicted upon each of them by the judgment being a fine of $55.00 and imprisonment of 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 trial and each has appealed.
One of the grounds urged for a new trial and now relied on for the reversal 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 indictment; and also the motion by each of -them to require the Commonwealth to elect which of the two offensés charged in the indictment it would prosecute. The demurrers should have been sustained; for, as stated, the indictment attempted 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,, bartered and loaned. This was indispensably necessary unless the name of such person was to the grand jury unknown, and if this was the case the indictment should have so alleged. Wilson v. Commonwealth, 14 Bush 159" court="Ky. Ct. App." date_filed="1878-09-07" href="https://app.midpage.ai/document/wilson-v-commonwealth-7379598?utm_source=webapp" opinion_id="7379598">14 Bush 159; Ellis v. Commonwealth, 78 Ky. 130" court="Ky. Ct. App." date_filed="1879-10-24" href="https://app.midpage.ai/document/ellis-v-commonwealth-7130993?utm_source=webapp" opinion_id="7130993">78 Ky. 130. The allegations setting forth the second offense are also insufficient. Treating as surplusage other immaterial facts stated, the offense charged is that of transporting intoxicants in violation of chapter 81, Acts of 1920, and as the indictment does not negative the exceptions contained in the enacting clause and body of the statute, no offense was charged. Dials v. Commonwealth, 192 Ky. 440" court="Ky. Ct. App." date_filed="1921-10-07" href="https://app.midpage.ai/document/dials-v-commonwealth-7146780?utm_source=webapp" opinion_id="7146780">192 Ky. 440, and cases therein cited. This omission also appears as to the alleged sale-constituting the first offense.
It is apparent, 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.