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406 S.W.2d 849

Carnes v. Commonwealth

Court of Appeals of Kentucky

Decided October 7, 1966

Court of Appeals of Kentucky · decided 1966-10-07

Cited by 3 later decisions — most recently March 1985

3 state decisions

Key passage — most relied on by later courts

““ T have been your Commonwealth’s Attorney four years and I truthfully say, ladies and gentlemen, that ninety per cent of our crime is a direct result of alcoholic beverage, * * *.’ ””

quoted by 1 later decision, including Harness v. Commonwealth

Applies KY 242 § 242.410

Relies on Brown v. Commonwealth · Harrison v. Commonwealth

Good law ✅— No negative treatment on recordhow we know

Decided 1966-10-07

View the full empirical analysis of this case →

CLAY, Commissioner.

¶1Appellant was convicted of possession of alcoholic beverages for sale in local option territory, a second offense, was fined $100 and given a jail sentence of 60 days.

¶2The first contention is that the indictment was fatally defective in that it did not allege the conviction of the first offense as being prior to the second offense with which appellant was charged.. We do not find in the record any motion attacking the indictment. (See RCr 8.14, 8.16 and 8.18.) Assuming there was, the statement in the indictment, “second offense”, was sufficient to apprise the defendant under RCr 6.10(2) of the essential facts constituting the specific offense with which he was charged. See Brown v. Commonwealth, Ky., 378 S.W.2d 608. Under RCr 6.12 we find no prejudice of defendant’s substantial rights. (It might be observed that defendant’s punishment was within the limits fixed by statute for the principal offense charged.)

¶3It is next contended that the evidence of defendant’s prior conviction was inadmissible because the warrant issued in that proceeding was defective. Of course defendant cannot succeed in a collateral attack on the judgment for a defect that would not render it void.

¶4It is finally contended the Commonwealth’s attorney used improper language in his closing argument to the jury. These statements were made:

“You don’t find bootleggers around here feeling sorry for these little children that go hungry and starving. You never seen them coming to the Orphanage or come to the church, or come somewhere and *851say here’s some money, here’s some help, here’s some clothing. They’re the last ones to ever do any help.”
“I have been your Commonwealth’s Attorney four years and I truthfully say, ladies and gentlemen, that ninety per cent of our crime is a direct result of alcoholic beverage, liquor, beer, these broken homes, these divorces, this child desertion, the wrecks on the highway, robberies, you can trace about every one of them to liquor.”

¶5There was no evidence in the record to support comments of this character. We have heretofore condemned similar remarks. Harrison v. Commonwealth, Ky., 368 S.W.2d 171. This type of argument is obviously designed to influence and inflame the jury. We cannot assume it did not have the prejudicial effect intended. The judgment must be reversed on this ground.

¶6Appellant raises an academic question with respect to the “good behavior” bond he was required to execute under KRS 242.410, which we decline to decide.

¶7The judgment is reversed.

PALMORE, C. J., and STEWART and HILL, JJ., dissenting.
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