South v. Commonwealth

| Ky. Ct. App. | Oct 6, 1881

■CHIEF JUSTICE LEWIS

delivered the opinion of the court.

Under the indictment as found and presented, the defendant can be legally convicted of only one offense. The statement that he sold liquors “upon divers other days and times ” describes no offense for which he may be tried. It follows, therefore, that instruction number one is erroneous :so far as it authorizes the jury to find the accused guilty •of more than one offense.

A person may in the same indictment be charged with more than one violation of the local option law, as it is •called; but each offense should be separately charged, and the statement of the particular circumstances of each should be direct and certain.

Instruction number two should not have been given. A person may be guilty of violating the local option law who ■sells for himself of for another, or authorizes another to sell for him, but he is not guilty when the sale is made by another, though done in his presence,- and at his solicitation, unless he be the owner of the liquor sold.

It is not necessary to allege in an indictment that the person charged with violating the local option law in a town where it is in force had no license to sell; for by the terms ■of the law no license to sell in such town can be granted. The demurrer to the indictment was therefore properly ■overruled.

. But for the errors mentioned, the judgment of the court below is reversed, and the cause remanded, with directions to set aside the verdict of the jury,- grant the defendant a new trial, and for further proceedings consistent with this •opinion.