Court of Appeals of Kentucky.
HINKLE v. COMMONWEALTH.
June 16, 1903.
ACTION: Reversed.


Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Isaac Hinkle was convicted of illegally selling intoxicating liquors, and appeals.

O'REAR, J.
Appellant was indicted under an act approved May 7, 1886, entitled "An act to prohibit the sale of spirituous, vinous, or malt liquors, or intoxicating beverages, *** within five miles of Union College in Knox County."

The indictment specifically charged in apt language the commission of the offense, but it needlessly undertook to say how the selling was done, wherein it averred that it was "by having in his [defendant's] possession and control a house and inclosure where spirituous liquors were at the time furnished and obtained in violation and evasion of law, the said Hardison [witness] obtaining same in said house and inclosure," etc. The circuit court overruled a demurrer to this indictment. The evidence disclosed more of guilty knowledge and conduct than is charged in the indictment, and enough to have justified the submission of the case to the jury, and to have supported the verdict, if the indictment had been such as to have warranted its submission to the jury. Merely being in the legal possession and control of the house and inclosure where spirituous liquors were sold or furnished without guilty knowledge of the fact, or without personally participating in it, is not enough to sustain the charge attempted to be set up by the indictment.

The judgment is reversed, and cause remanded, with directions to award appellant a new trial, and to sustain the demurrer to the indictment, and for further proceedings not inconsistent herewith.



     

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