Meredith v. Commonwealth

233 S.W. 793, 192 Ky. 377, 1921 Ky. LEXIS 73

Opinion

Opinion of the Court by

Judge Clay

— Reversing.

Appellant, Fred Mereditli, was convicted of the offense of selling intoxicating liquor in dry territory.

One of the grounds urged for reversal is that the verdict is not sustained by the evidence. The point is well taken. The offense being a misdemeanor, it was necessary for the indictment to allege and for the Commonwealth to prove that the offense was committed within twelve months before the finding of the indictment. Williams v. Commonwealth, 18 Ky. L. R. 667, 37 S. W. 839; Commonwealth v. T. J. Megibben Co. 101 Ky. 195, 40 S. W. 694. The indictment, which was returned on November 17, 1920, contained the necessary allegation, but the only evidence offered by the Commonwealth was the statement of one witness that “in the fall of 1919”' he bought one quart of whiskey from the defendant in Edmonson county and paid the defendant $3.00 therefor. As the fall season includes the months of September, October and November, it necessarily follows that evidence that a particular offense was committed in the fall does not prove beyond a reasonable doubt that it was committed after November 17.

We refrain, from discussing the other errors assigned, as probably they will not occur on another trial.

Judgment is reversed and cause remanded for new trial not inconsistent with this opinion.