202 Ky. 684 | Ky. Ct. App. | 1924
Reversing.
The indictment under which appellant was convicted charges him with “the offense of drunkenness,” and in the language of the indictment charging the offense it is said that he “did unlawfully, willfully, knowingly he and become drunk and in an intoxicated state by the use of liquor or other intoxicating beverages contrary to the form of the statutes,” etc. The court overruled the demurrer filed thereto and that action of the court is made a ground for a new trial in defendant’s motion made for that purpose. It is also complained that the jury in its verdict, after assessing a fine and an imprisonment in the county jail, added thereto “working statute applied,” which words, it is insisted, did not authorize the court to adjudge, as it did, 'that defendant should serve out either the fine or the imprisonment at hard labor, it being contended that before such a judgment could be rendered it was necessary for the court to submit to the jury in the instructions the right to return at its discretion such a verdict and that the latter should in terms so prescribe, and in support of that contention the case of FJdridge v. Commonwealth, 87 Ky. 365, is relied on. The service at hard labor, attempted to be applied in that case, was by virtue of 'the provisions of. an act of April 10, 1878, which was a part of chapter 29 of the then compiled statutes of this Commonwealth, known as the “General Statutes,” and the opinion was based upon a construction of that statute.
Section 10 of chapter 33, Acts 1922, page 109, commonly known as the “Eash-Gullion Act,” prescribing the offense for which defendant was attempted to be charged, says: “All persons who are convicted under this act, where a jail sentence is inflicted as part of the punishment, shall serve out the jail sentence at hard labor, and all fines and costs assessed against any person under this act, and not paid or replevied, shall be served out by confinement at hard labor at the rate of one day for each dollar of such fines and costs.” From its terms it readily will be seen that it is not for the jury to say in its verdict whether the labor sentence shall be applied, but on the contrary it is the imperative duty of the court in pronouncing the judgment to so specify. That being-true, the opinion in the Eldridge case has no application to this one, and it follows that the ground relied on for a reversal now under consideration must be overruled.
Wherefore, the judgment is reversed with directions to grant the new trial and to sustain the demurrer to the indictment.