Allen v. Commonwealth

Court of Appeals of Kentucky (pre-1976)

Allen v. Commonwealth

275 S.W. 807, 210 Ky. 329, 1925 Ky. LEXIS 664

CourtCourt of Appeals of Kentucky (pre-1976)

DecidedSeptember 29, 1925

StatusPublished

Cited by1 cases

This text of 275 S.W. 807 (Allen v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky (pre-1976) primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Allen v. Commonwealth, 275 S.W. 807, 210 Ky. 329, 1925 Ky. LEXIS 664 (Ky. 1925).

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Opinion

Opinion of the Court by

Judge Clay

Reversing.

Appellant was convicted of selling intoxicating liquor under an indictment which also charged a prior conviction of the prohibition act of 1922, and Ms punishment fixed at one year’s confinement in the penitentiary.

We find no material error except in instruction No. 1.

The prohibition act provides that upon a second conviction “for a violation of any of the provisions of this act, ’ ’ except certain provisions not material, the defendant shall be confined in the penitentiary for not less than one year, nor more than three years. It is at once apparent that the act does not make the second offense a felony unless the first offense was committed after' the act went into effect. Walker v. Commonwealth, 192 Ky. 257, 232 S. W. 617. The act became effective March 22, 1922. The evidence for the Commonwealth tended to show that the first offense was committed after that time, while appellant testified that it was committed on March 19,1922. *330 With respect to this pháse of the case the only question, submitted to the jury was whether appellant was tried on. September 17, 1923, and convicted of the first offense. Of course, the time of trial is not conclusive of the time the offense was committed, and, in view of the conflicting evidence, the question whether the first offense was committed after March 22, 1922, should have been submitted to the jury. Since the date of the commission of a misdemeanor is not material further than it must be alleged and proved to have been committed within one year from the time the indictment was returned or the warrant issued, the date fixed by the indictment or warrant is not conclusive, and upon a trial for a second violation of the. act, oral evidence is admissible to show when the first offense was committed.

Judgment reversed and cause remanded for a new trial consistent with this opinion.

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Opinion of the Court by

Judge Clay

Reversing.

Appellant was convicted of selling intoxicating liquor under an indictment which also charged a prior conviction of the prohibition act of 1922, and Ms punishment fixed at one year’s confinement in the penitentiary.

We find no material error except in instruction No. 1.

The prohibition act provides that upon a second conviction “for a violation of any of the provisions of this act, ’ ’ except certain provisions not material, the defendant shall be confined in the penitentiary for not less than one year, nor more than three years. It is at once apparent that the act does not make the second offense a felony unless the first offense was committed after' the act went into effect. Walker v. Commonwealth, 192 Ky. 257, 232 S. W. 617. The act became effective March 22, 1922. The evidence for the Commonwealth tended to show that the first offense was committed after that time, while appellant testified that it was committed on March 19,1922. *330 With respect to this pháse of the case the only question, submitted to the jury was whether appellant was tried on. September 17, 1923, and convicted of the first offense. Of course, the time of trial is not conclusive of the time the offense was committed, and, in view of the conflicting evidence, the question whether the first offense was committed after March 22, 1922, should have been submitted to the jury. Since the date of the commission of a misdemeanor is not material further than it must be alleged and proved to have been committed within one year from the time the indictment was returned or the warrant issued, the date fixed by the indictment or warrant is not conclusive, and upon a trial for a second violation of the. act, oral evidence is admissible to show when the first offense was committed.

Judgment reversed and cause remanded for a new trial consistent with this opinion.

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275 S.W. 807, 210 Ky. 329, 1925 Ky. LEXIS 664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-commonwealth-kyctapphigh-1925.

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