Baker v. Commonwealth

259 S.W. 35, 202 Ky. 181, 1924 Ky. LEXIS 677

• Court: Court of Appeals of Kentucky
• Decided: February 19, 1924
• Status: Published

Opinion

Opinion of the Court by

Judge Clay

Reversing.

Appellant was indicted for the offense of “owning, harboring, operating and having in his possession an illicit or moonshine still. ’ ’ The indictment being duplicitous, he asked that the Commonwealth be required to elect. His motion was sustained, and the Commonwealth elected to try him for the offense of “harboring a moonshine still.” The jury found him guilty and imposed a fine of $300.00, in addition to a jail sentence of 50 days.

The present statute merely makes it unlawful for any person “to buy, bargain, sell, loan, own, have in possession or knowingly transport an illicit still,” section 4, chapter 33, Acts 1922, and neither it nor any other statute contains any provision making it an offense “to harbor a moonshine still. ” It is therefore clear that after the election by the Commonwealth, the facts stated in the indictment did not constitute a public offense within the jurisdiction of the court. That being true, the trial court without motion should have arrested the judgment. Section 278, Criminal Code.

This conclusion makes it unnecessary to consider the grounds relied on for a new trial.

On the return of the case the Commonwealth will be permitted to make a different election.

Wherefore the judgment is reversed and the cause remanded, with directions to arrest the judgment and for such further action as the ends of justice may require.