Wellman v. Commonwealth

292 S.W. 467, 218 Ky. 807, 1927 Ky. LEXIS 256

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: March 15, 1927
• Status: Published

Opinion

Opinion op the Court by

Judge McCandless

Affirming.

John Wellman was indicted, tried and convicted of the offense of drunkenness under sec. 2554a-28, Ky. Statutes. On this appeal it is urged, first, that a demurrer should have been sustained to the indictment, which charged the defendant with being intoxicated and drunk upon a public or private road and in a public place. When the demurrer was filed the commonwealth elected to try the defendant upon the charge of being1 drunk and intoxicated in a public jplacie. Whereupon the demurrer was overruled. The objection urged is that the indictment does ‘not charge that the drunkenness was produced by the use of intoxicating liquor. We see no merit in this contention. The statute denounces the offense of drinking intoxicating liquors in public places or upon passenger coaches or other places named for which a punishment is fixed, even though the offender is not intoxicated. It also denounces the offense of being drunk or intoxicated in any public place, &c., without requiring the commonwealth to show the producing cause of the intoxication. The indictment was sufficient in this respect. It is also argued that the court should have given a peremptory instruction for the defendant because it was not shown how, when or where he had drunk any intoxicating liquor. However, the statute does not place, the burden of proving this fact upon the commonwealth, and it was abundantly proven that the defendant was in a drunben condition upon the street of Louisa. Certainly the street of a town is a public place and the court properly overruled the motion for a directed verdict.

Wherefore, perceiving no error, the judgment is. affirmed.