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193 Ky. 425

Lovelace v. Commonwealth

Court of Appeals of Kentucky

Decided January 17, 1922

Court of Appeals of Kentucky · decided 1922-01-17

<p>1. Indictment and Information — Duplicity—Demurrer—Election.— Where separate and distinct offenses are improperly joined in an indictment, the indictment is demurrable unless the Commonwealth elects which of the offenses it will prosecute.</p> <p>2. Indictment and Information — Rule as to Indictment Negativing Exception ‘Stated. — An indictment must negative exception if it is contained in the paragraph of the statute creating and describing the offense.</p> <p>3. Intoxicating Liquors — Indictment Demurrable for Failure to Negative Exceptions Contained in the Statute. — An indictment, whether charging the offense of selling, transporting or keeping for sale intoxicating liquors, in violation of Acts 1920, chapter 81, section 1, is demurrable unless it negatives the exceptions by adding the words, “for other than sacramental, medicinal, scientific or mechanical purposes in the Commonwealth of Kentucky,” or other words of similar import.</p>

Relies on Dials v. Commonwealth · Sutton v. Commonwealth · Brooks v. Commonwealth

Good law ✅— No negative treatment on recordhow we know

Decided 1922-01-17

How this case has been cited

Cited by 18 later decisions — most recently July 1979

18 state decisions

80192219301940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1Opinion of the Court by

Judge Clay

¶2Reversing.

¶3James Lovelace, who was tried -and. convicted of the •offense of transporting intoxicating liquors, and his punishment fixed at a fine of $200.00 and thirty days ’ imprisonment in the county jail, seeks a reversal of the judgment.

¶4We need go no further than the' indictment. While the indictment accuses the defendant of the offense of selling intoxicating liquors, yet in setting forth the particular circumstances of the offense, it charges three separate and distinct offences: (1) Selling intoxicating liquors; (2) transporting intoxicating liquors; (3) keeping intoxicating liquors for sale. It is the rule that an indictment must name the offense charged, and that conviction can be had only for the offense named. Brooks v. Commonwealth, 98 Ky. 143, 32 S. W. 403; Commonwealth v. Tupman, 30 S. W. 661, 17 Ky. L. Rep. 217; Miller v. Commonwealth, 77 S. W. 682, 25 Ky. L. Rep. 1236. It is also the rule that an indictment must charge hut one offense, section 126, Criminal Code, except in the *426cases mentioned in section 127, Criminal Code, and the offenses here 'charged do not fall within the exceptions. Another rnle equally well settled is that where separate and distinct offenses are improperly joined in the indictment, the indictment is demurrable, unless the Commonwealth elects which of the offenses it will prosecute. Messer v. Commonwealth, 80 S. W. 489. Here the Commonwealth did not elect, and 'the demurrer to the indictment should have been sustained.

¶5The indictment is defective for another reason. It is based on section 1, chapter 81, Acts 1920, which provides:

“That it shall be unlawful to manufacture, sell, barter, give away or keep for sale, or transport, spirituous, vinous, malt or intoxicating liquors except for sacramental, medicinal, scientific or mechanical purposes in the Commonwealth of Kentucky.”

¶6We have repeatedly held that if an exception is contained in the paragraph of the statute creating and describing the offense, it must be negatived in the indictment. Such is the case here, and an indictment, whether charging the offense of .selling, or transporting, or keeping for sale, should contain the further allegation, “for other than sacramental, medicinal, scientific or mechanical purposes in the Commonwealth of Kentucky,” or other words of similar import. Dials v. Commonwealth, 192 Ky. 440, 233 S. W. 888.

¶7Wherefore, the judgment is reversed and cause remanded with directions to sustain the demurrer to the indictment.

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