Herine v. Commonwealth

Court of Appeals of Kentucky

Herine v. Commonwealth

76 Ky. 295, 13 Bush 295, 1877 Ky. LEXIS 49

DecidedSeptember 11, 1877

StatusPublished

This text of 76 Ky. 295 (Herine v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Herine v. Commonwealth, 76 Ky. 295, 13 Bush 295, 1877 Ky. LEXIS 49 (Ky. Ct. App. 1877).

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Opinion

JUDGE ELLIOTT

delivered the opinion of the court.

The appellant C. C. Herine was indicted in the Jessamine Circuit Court for selling ardent spirits without a license so to do. Thé indictment charges that Herine, “on the 20th of August, 1875, while engaged in the distillation and merchandising of spirituous liquors, did sell such liquors — to wit, whisky and brandy — in quantities of a quart and less, to one W. B. Gibney, at a point other than his distillery, namely, at his residence;” but the indictment fails to charge that appellant sold the ardent spirits in “ a house, to be drunk therein or on or adjacent to the premises where sold,” or that the [297]*297liquor was sold and drunk in a house, or on or adjacent to the premises where sold, and therefore it was insufficient to authorize a verdict and judgment for keeping a tippling-house. (See General Statutes, page 364.)

By chapter 92, article 3, section 5 of the General Statutes it is provided that “any tavern-keeper or merchant who shall sell spirituous liquors without having obtained a license therefor shall, on conviction, pay $60but the indictment in this case fails to charge that the appellant was a tavern-keeper or merchant when he sold the liquors named therein, and therefore he could not have been convicted under this provision of the statute.

As appellant was fined $60 upon an insufficient indictment, the judgment is reversed and cause remanded, with directions to dismiss the prosecution.

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JUDGE ELLIOTT

delivered the opinion of the court.

The appellant C. C. Herine was indicted in the Jessamine Circuit Court for selling ardent spirits without a license so to do. Thé indictment charges that Herine, “on the 20th of August, 1875, while engaged in the distillation and merchandising of spirituous liquors, did sell such liquors — to wit, whisky and brandy — in quantities of a quart and less, to one W. B. Gibney, at a point other than his distillery, namely, at his residence;” but the indictment fails to charge that appellant sold the ardent spirits in “ a house, to be drunk therein or on or adjacent to the premises where sold,” or that the [297]*297liquor was sold and drunk in a house, or on or adjacent to the premises where sold, and therefore it was insufficient to authorize a verdict and judgment for keeping a tippling-house. (See General Statutes, page 364.)

By chapter 92, article 3, section 5 of the General Statutes it is provided that “any tavern-keeper or merchant who shall sell spirituous liquors without having obtained a license therefor shall, on conviction, pay $60but the indictment in this case fails to charge that the appellant was a tavern-keeper or merchant when he sold the liquors named therein, and therefore he could not have been convicted under this provision of the statute.

As appellant was fined $60 upon an insufficient indictment, the judgment is reversed and cause remanded, with directions to dismiss the prosecution.

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Bluebook (online)

76 Ky. 295, 13 Bush 295, 1877 Ky. LEXIS 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herine-v-commonwealth-kyctapp-1877.