194 S.W.2d 504 | Ky. Ct. App. | 1946
Reversing.
As appears from the bill of exceptions, Andy Strunk, without benefit of counsel, appeared in the Whitley Circuit Court and entered a plea of guilty to an indictment charging him with illegally selling intoxicating liquor in Whitley County where prohibition was in effect. No jury was empanelled to assess the punishment but the judge fixed it at a fine of $100 and confinement in the county jail for 60 days, the maximum provided in KRS
Strunk filed a motion for a new trial in which he assigned as errors: (a) That the indictment did not state a public offense; (b) that the court was without authority to assess his punishment above the minimum prescribed by KRS
No demurrer was filed to the indictment but appellant *286
argues that none was necessary as the indictment charged no public offense in that the descriptive part thereof failed to name the person to whom the liquor was sold, and it was further defective in charging that the sale violated the "Alcoholic Control Act," citing Johnson v. Com.,
In the Johnson case,
The indictment averred that the sale of the intoxicating liquor was illegally made in territory wherein prohibition was in effect but erroneously charged that it was in violation of the "Alcoholic Control Act." The indictment would have been bad upon demurrer since we have held that one charged with selling or trafficking in liquor in local option territory must be prosecuted under the local option law, KRS Chapter 242, and not under the Alcoholic Beverage Control Act, KRS Chapter 241. Wilson v. Goodin,
The bill of exceptions shows that appellant was not represented by counsel, and upon the case being called entered a plea of guilty; whereupon the judge, without *287
the intervention of a jury, instructed the clerk to enter an order inflicting a fine upon him of $100 and a sentence of 60 days in the county jail. Section 258 of the Criminal Code provides that the jury shall fix the degree of punishment, unless the same is fixed by law. That section as construed in Bates v. Com.,
Not only does sec. 258 of the Criminal Code of Practice provide that the jury shall fix the punishment, but KRS
The motion for an appeal is sustained and the judgment is reversed for proceedings consistent herewith.