139 Ky. 330 | Ky. Ct. App. | 1907
Opinion of the Court by
Affirming.
Counsel for appellant assigns the following errors as grounds for reversal:
1st. That the evidence does not show that appellant was carrying on business in this state.
2nd. That the business was interstate commerce, and therefore not subject to regulation by the state of Kentucky.
3rd. That the court erred in sustaining a demurrer to appellant’s plea of a former conviction for the same offense.
The contract between appellant and T. L. Humble, who was alleged to be the agent through whom the business was done in Monroe county, is entitled “Agent’s Commission Contract.” It appoints said
We shall next consider the question of whether or not the transaction was one of interstate commerce. The wagons sold by appellant were not sold by drummers, or by sample or by correspondence, but the very wagons delivered to the agent at Toledo, Ohio, were sold from the agency established in Monroe county, Kentucky, and as was said in the case of Commonwealth v. Parlin & Orendorff Co.,
The only other question to be considered is the validity of appellant’s plea of former conviction. The agreed facts in this case and the indictment in the Cumberland circuit court show that appellant was convicted in the court for violating section 571 by carrying on business in this state on the-day of September, and since August, 1906, and since the Monroe circuit court. In other words, the prosecution in the Cumberland circuit court was instituted for an offense committed after the penal action was filed in the Monroe circuit court. While it is true that the offense charged in this case is a continuous one, and the Commonwealth can not, therefore, carve several offenses out of the one committed by instituting several prosecutions at the same time, it is also true that if after a prosecution is begun, the defendant again commits the same offense, another prosecution may be instituted against him, and a conviction in either ease can not be pleaded in bar of the other prosecution (Cawein v. Commonwealth, 110 Ky. 273). It therefore follows that the trial court properly sustained a demurrer to appellant’s plea of a former conviction.
For the reasons stated judgment is affirmed.