DELIVERED the opinion or the court..
■Appellant was indicted and convicted for unlawfully selling spirituous liquor contrary to “An act to regulate the selling, procuring for or giving of spirituous, vinous or malt liquors or any intoxicating drinks in the county of Carter.” Approved March 18, 1886.
!He was charged in the indictment with so selling to each Davis and Scott, and counsel argue that the demurrer ought, ■for that reason, to have been sustained. But conceding two distinct offenses were thus improperly charged in the same indictment, the defect was cured by the election made on
Another objection is made on account of omission of the formal statement that the alleged offense was committed within twelve months before the indictment was found. The reason for requiring that statement in an indictment for a misdemeanor is that the plea of limitation should be by the (Commonwealth anticipated and made to appear prima facie precluded. But as the indictment in question was found and returned November. 9, 1896, and contains a specific averment that the alleged offense was committed November 2, 1896, no further statement on the subject was needed. Appellee did not in person, on the day named, deliver liquor to Davis and receive from him pay therefor. But'he owned and controlled a house wherein liquor was clandestinely and unlawfully sold. In the rear part of that house was a partition wall, on one side of which Davis, the buyer, stood, and on the other side was stationed the hidden seller. In the wall was a hole, through which a small box containing the money of Davis was pulled, and in a short time it was pushed back to him containing in exchange a bottle of whisky.
Such facts being proved, the lower court was fully justified in instructing the jury upon the hypothesis appellant, if not in person, did by his authorized agent sell the liquor as charged.
It was admitted on the trial that in June, 1886, an election was duly held in pursuance of the statute mentioned, when a majority of votes were cast against the selling of spirituous, vinous or malt liquors in Carter county, and con
That section literally interpreted left all existing local laws, like the one under consideration, relating to the salé or gift of spirituous, vinous or malt liquors wholly intact and in full' operation. But manifestly it was foreseen and intended that in performance of the duty enjoined thereby the General Assembly would necessarily have and exercise the power of making the reguired general law comprehensive ■of the whole subject, and enforcible uniformly throughout the Commonwealth. Accordingly a general law was, March 10, 1894, enacted, now contained in chapter 8, Kentucky /Statutes, which not only does provide the means whereby the sense of the people of each county, city, town, district or precinct may be taken on the question mentioned, and the mode of ascertaining result of such elections.; but it is made applicable to and paramount in every such local sub.
It thus results the General Assembly has not, even if it could, nullified the effect of the election held under the law applicable to Carter county, and that sale of liquor there is unlawful and will remain so until another election be held, with a different result, according to provisions of the general law now in force. It appears that the penalty prescribed for violation of the Carter county law, and inflicted on appellant, is less than the minimum amount prescribed in the general law. •But as he has not been prejudiced, but rather profited, by failure of the lower court to impose the penalty prescribed by the general law which might have been done, can not complain.
Judgment affirmed.