Webb v. Commonwealth

276 S.W. 812, 210 Ky. 717, 1925 Ky. LEXIS 761

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: October 23, 1925
• Status: Published

Opinion

Opinion of the Court by

Chief Justice Clarke

Reversing,

The warrant upon which appellant was tried and convicted of unlawfully possessing intoxicating liquor, simply accuses him of “the offense of possessing whiskey,” and neither alleges the possession was “unlawful” nor denies it was for a purpose permitted by the prohibition statute (section 2554a-l).

Section 27 of the Criminal Code requires that a warrant of arrest ‘ ‘ shall, in general terms, name or describe the offense charged to have been committed.” That this warrant neither names nor describes the offense is clear, since the possession of whiskey may or not be unlawful.

Vanover v. Commonwealth, 202 Ky. 813, 216 S. W. 604, and like cases relied upon by the Commonwealth, veiy clearly do not sustain such a warrant as this, since they only hold that it is not necessary in a warrant, as in an indictment, to negative the exceptions in the statute. None of them holds that it is not necessary .to charge an unlawful possession, and in every one of them, so far as we can find, such was the charge,

The reason that an indictment must and a warrant need not negative the exceptions contained in the prohi bition statute is because tbe Code (section 124) requires tbe former to state tbe facts constituting tbe offense, whereas tbe latter (section 27) need only name or describe tbe offense in general terms, but this, at least, it must do.

As this warrant neither names nor describes an offense in general terms or at all, it is clear tbe trial court erred in overruling tbe demurrer thereto.

It also is .insisted that tbe verdict is flagrantly against the evidence, but to this we cannot agree.

Wherefore, tbe judgment is reversed, and the cause remanded for proceedings not inconsistent herewith.