Asher v. Commonwealth

68 S.W. 130, 113 Ky. 296, 1902 Ky. LEXIS 50

• Court: Court of Appeals of Kentucky
• Decided: May 9, 1902
• Status: Published

Opinion

Opinion of the court by

CHIEF JUSTICE GUFFY

Affirming.

The appellant was indicted, tried, and convicted in the Fayette circuit court of the offense of standing a stud horse without license. The specifications are as follows: “That said H. L. Asher, on the 18th of June, 1901, in the county aforesaid, did unlawfully stand for service to mares a certain stud horse called ‘Alfred G,’ and did charge money, property, and other things for the service, without a license' authorizing him so to do,” etc. The appellant’s grounds for a new trial having been overruled, he prosecutes this appeal. The grounds relied upon are, in substance: '(1) Because the court refused to give peremptory instruction; (2) because the court misinstructed and refused to properly instruct the jury; (3) because the verdict is against the law and evidence. The defendant also demurred to the indictment, which demurrer was overruled.

It is the contention of appellant that the indictment was 'insufficient, for the reason that it does not specify the amount of .money or property received by him, and because it does not state that he was engaged in the business of standing a stud, etc. We do not think these contentions tenable. It was not necessary to state the amount of money or property received, nor was it necessary' that it should be specifically alleged that he was engaged in the business of standing a stud. The charge that he did stand a stud, and charge therefor, sufficiently shows that he was engaged in the business to some extent, and we deem it immaterial as to how often he violated the statute, as, if only once, it is sufficient to authorize a'verdict and judgment.

It is also insisted that the court should have given the peremptory instruction a’sked for the reason that there was no evidence tending to establish the guilt of appellant. Only-one witness was introduced by the Commonwealth and none by the defendant. It was proven by the witness, Fred Rosa, that appellant owned a trotting stallion by the name of “Alfred G.;” that witness owned aunare, and that he bred his mare to the horse, .and had. an agreement with the appellant that, if the said mare had a colt, and the said Asher desired, he could buy it for the sum of $75, but that in no event, whether he took the -colt or not, would Asher' charge him anything for breeding his said mare to his stud. It is the contention of appellant that this evidence did not conduce to show that appellant had violated section 4201, art. 10, e. 108, of the.Kentucky Statutes, which reads as follows: “Any person who shall engage in any business, or sell or offer to sell any article un which a license is required before procuring the license and paying tax thereon as required by law, shall be deemed guilty of a misdemeanor, and on conviction be fined not less than $50.00 nor more than $1,000.00 for each offense, unless otherwise specially provided,” It will be found in .section 4224 that a license is required to be paid by a person wlm shall stand a stud horse, jack, or bull, and .that the license shall equal the greatest sum charged for the service of the animal, whether 'the same be for the season or insurance. So it is clear, if the averments in the indictment are true, that the appellant was guilty.

It is further argued for the appellant that what he was to receive was of no value, or at least not an enforceable contract. We, however, are of opinion that he was entitled to enforce the contract at his option, and that the privilege was of some value. This being true, the evidence tended to establish the guilt of the defendant. Nor do we think it material wdiether the contract made was enforceable as a matter of law or not, for a contract for compensation for the service of the stud would constitute a violation of the statute whether, as a matter of fact, the defendant -derived any profit or benefit from the promise of reward or payment or not.

Complaint is also made of the instruction given by the court, but, after careful examination thereof, we are of opinion that they were quite as favorable to the defendant as he was entitled to.

Judgment affirmed;

whole court sitting.