Jackson v. Commonwealth

70 Ky. 99, 7 Bush 99, 1870 Ky. LEXIS 3

• Court: Court of Appeals of Kentucky
• Decided: June 9, 1870
• Status: Published

Opinion

JUDGE ROBERTSON

delivered the opinion op the court.

This is an indictment against the appellant for an alleged violation of the 14th section of chapter 29,1 Revised Statutes, 408, which provides that “ every tavern-keeper shall, within one month after the rates are fixed by the cowrt, obtain from the clerk thereof a fair table of such rates, and set them up in the public room of his tavern-house, and keep them up.”

The indictment simply charges that the appellant, on the 6th of May, 1869, “while a keeper of a public house or tavern, did unlawfully fail to keep posted in the public room of his tavern, in the town of 'Winchester, a table of the rates fixed by the clerk of the county court for liquors,” etc.

Waiving any other objection to the indictment, the omission to allege when the rates were fixed, or that they had been fixed a month before the 6th of May, 1869, is alone a fatal defect on demurrer; for, admitting all that is alleged, it is not a legal and necessary deduction that the appellant had failed to put up or keep up the rates “ within a month after they had been fixed,” and the admission of the charge as made does not therefore show that he had violated the law.

Consequently, as the circuit court erred in overruling the demurrer, the judgment of conviction is reversed, and the cause remanded for further proceedings.