Case One
23 Ky.L.Rptr. 583
Court of Appeals of Kentucky.
FARRIS v. COMMONWEALTH.
App. 1901.


PAYNTER, C. J.
The indictments in these cases are under the local option law, referred to in the opinion this day delivered in the case of Farris v. Commonwealth (Ky.) 63 S. W. 615, and the questions as to the sufficiency of the indictment and as to the penalty to be imposed are the same as were raised and decided in that case. The facts with reference to the failure to read the indictment are the same in these cases as in the case referred to, and for that reason the judgments are reversed.

The clerk of the court sent with the transcript what he claims to be the original instructions. Original papers cannot be brought before the court in this way. Therefore there is nothing before us to show whether or not the court properly instructed the jury. It is sufficient to say that on the next trial the court should give instructions which are usual in cases of this character.

Counsel urges that the evidence in these cases does not show a violation of the law. We think it was sufficient to let the case go to the jury, for it to determine whether or not the defendant had been proven guilty of the offense charged in the indictment. For the reasons given, the judgments are reversed, for proceedings consistent with this opinion.

Ky.App. 1901.
FARRIS v. COMMONWEALTH
63 S.W. 617, 23 Ky.L.Rptr. 583

Case Two
23 Ky.L.Rptr. 580, 111 Ky. 236
Court of Appeals of Kentucky.
FARRIS v. COMMONWEALTH.
App. 1901.


PAYNTER, C. J.
By an act approved April 15, 1884, entitled "An act to regulate the sale of spirituous, vinous, or malt liquors, or any intoxicating beverage, in the counties of Knox and Whitley" (1 Acts 1883-84, c. 789), it is made unlawful for any person to sell, directly or indirectly, any spirituous, vinous, or malt liquors, or any intoxicating beverage, in the counties of Knox and Whitley, except a druggist, in a prescribed way, and a local distiller, who "may sell spirituous, vinous, or malt liquors of his own manufacture in quantities not less than ten gallons, to be removed from his premises." The indictment, in describing the offense, charges that the appellant did unlawfully sell "intoxicating spirituous, vinous, and malt liquors, and a mixture thereof, to S. M. White, by the drink, ***" in violation of the provisions of an act of the general assembly of the commonwealth of Kentucky regulating the sale thereof, etc., in the counties of Knox and Whitley, approved April 15, 1884; he not being a legal manufacturer, distiller, or druggist.

It is insisted the indictment is defective because the accusative part did not charge defendant with the offense of unlawfully "selling intoxicating spirituous, vinous, and malt liquors, and a mixture thereof." We do not think the omission of the word "unlawful" renders the indictment defective. It charges that he was guilty of the offense of selling spirituous liquors, etc., in quantities which would be in violation of the act of the legislature referred to. Counsel for appellant urges that the indictment is defective because it is not sufficiently specific to enable the defendant to know under what law he is being prosecuted. It is based upon the local law, to which we have referred. So the local act referred to is in force, but the penalty prescribed by the general law is to be applied for its violation. Section 2557, Ky. St., imposes a penalty of not less than $100, nor more than $200, for the offense of selling spirituous, vinous, or malt liquors. Section 2557a, Ky. St., imposes a penalty of not less than $20, nor more than $100, for selling "any beverage, liquid mixture or decoction of any kind which produces or causes intoxication." It was unnecessary to use the word "intoxicating" in the indictment, in the description of liquors, and it was unnecessary to use the words "and a mixture thereof." Still we think the indictment clearly charges the defendant with selling spirituous, vinous, and malt liquors; and the penalty therefor, under section 2557, Ky. St., is not less than $100 nor more than $200.

It appears from the record exhibited on the trial of the case that a vote was taken in precinct No. 9 in Knox county, Ky., as to whether spirituous, vinous, or malt liquors should be sold, bartered, or loaned in that precinct. The result of the election shows that a large majority of the people of the precinct voted against the proposition. Its result was returned, canvassed, and certified. The election did not have any effect whatever upon the local law. Assuming that the election was held in the manner provided by the local option law, still the result of it shows that a majority of the people were opposed to a change of the local law, and, of course, it remained in force. The liquor was sold to White in that precinct, and in violation of the local law. We are unable to see that the record exhibited with reference to the vote that was taken in that precinct has any relation to the question involved in this case.

Counsel for appellant complains of the instruction which the court gave the jury which required them to believe that the liquor was sold to White within five miles of Union College, in Barbourville. It was erroneous, but not prejudicial to the defendant. He was guilty if the liquor was sold in Knox county, and it imposed a burden upon the commonwealth which was unnecessary. Of course, this instruction should not be given on the next trial of the case, but instructions which are usual in cases of this kind should be given.

The bill of exceptions shows that the case was called for trial, and commonwealth and defendant announced "Ready." Then the jury was impaneled and sworn. The indictment was not read by the commonwealth's attorney, or the clerk of the court, or any one else, before the trial began, or at any time during its progress. It is insisted that the case should be reversed for this reason. Section 219, Cr. Code Prac., reads as follows: "The clerk, or commonwealth's attorney, shall then read to the jury the indictment, and state the defendant's plea." This section refers to what shall next be done after the jury is sworn to well and truly try the issue. The indictment was not read, as we have said, and neither the clerk nor the commonwealth's attorney stated the plea of the defendant. This provision of the Code is mandatory. This court that the requirement of the Criminal Code that the clerk or the commonwealth's attorney shall read the indictment and state the plea of the defendant to the jury next in order after they are sworn to try the issue is mandatory, and no party can be legally convicted unless it is substantially complied with. It also held that where the duty was performed before the close of the evidence for the prosecution, while it was still within the power of the court to recall the witnesses, the substantial rights of the defendant were not prejudiced; nor was the mere fact that the indictment was read by the attorney employed to prosecute, instead of the commonwealth's attorney, a ground for a reversal; it having been done at the request of the latter officer, in the presence of the court and of the defendant, without objection at the time. But in this case, as we have said, it was not read at any time by any one, and for that reason the case is reversed for proceedings consistent with this opinion.

Ky.App. 1901.
FARRIS v. COMMONWEALTH.
63 S.W. 615, 23 Ky.L.Rptr. 580, 111 Ky. 236

Case Three
Court of Appeals of Kentucky.
FARRIS v. COMMONWEALTH.
April 30, 1907.


Appeal from Circuit Court, Knox County.
Not to be officially reported.
P. B. Farris was convicted of a violation of the local option law, and appeals.
Appeal dismissed.
Cr.Code Prac. § 348, relating to misdemeanors, provides that an appeal must be prayed during the term at which the judgment is rendered, and shall be granted upon the condition that the record be lodged with the clerk of the Court of Appeals within 60 days after the judgment. Held that, where a party convicted of a misdemeanor neglected to file the transcript until 3 months and 6 days after the overruling of his motion for a new trial, the appeal will be dismissed.

BARKER, J.
The appeal in this case must be dismissed.

Case Four
Court of Appeals of Kentucky.
FARRIS v. COMMONWEALTH.
April 30, 1907.


Appeal from Circuit Court, Knox County.
Not to be officially reported.
P. B. Farris was convicted of violating the local option law, and appeals.

Appeal dismissed.

BARKER, J.
On the 6th day of December, 1906, the appellant was tried in the Knox circuit court for violating the local option law, with the result that he was found guilty by the jury and a fine of $75 inflicted. On the 12th day of December, 1906, appellant's motion for a new trial was overruled, and an appeal prayed and granted to this court. On the 12th day of March, 1907, the transcript was filed in this court.

The first question to be disposed of is whether or not the appeal must be dismissed for want of jurisdiction in this court to try it. The Criminal Code of Practice which relates to misdemeanors, is as follows: "The appeal must be prayed during the term at which the judgment is rendered, and shall be granted upon the condition that the record be lodged in the clerk's office of the Court of Appeals within sixty days after the judgment." Counting from the time appellant's motion for a new trial was overruled in the circuit court, he filed the transcript in the clerk's office of the Court of Appeals in 3 months and 6 days. This was too late. Unless the transcript was filed within 60 days after the judgment, this court could not take jurisdiction of the appeal.

It follows from this that the appeal in this case was not prosecuted within the time required by the Code, and we are now without jurisdiction to try it.

Appeal dismissed.

Case Five
31 Ky.L.Rptr. 847, 126 Ky. 463
Court of Appeals of Kentucky.
FARRIS v. COMMONWEALTH.
Sept. 19, 1907.


Appeal from Circuit Court, Knox County.
"To be officially reported."
P. B. Farris was convicted of selling intoxicating liquor in quantities less than five gallons, in violation of the act regulating the sale of intoxicating liquor in the counties of Knox and Whitley, approved April 15, 1884, and of the acts amendatory thereof, and he appeals. Reversed and remanded for a new trial.

CLAY, C.
Appellant, P. B. Farris, was indicted, tried, and convicted in the Knox circuit court for the offense of selling intoxicating, spirituous, vinous, and malt liquors, or a mixture thereof, in quantities less than five gallons, in violation of the act of the General Assembly of the commonwealth of Kentucky regulating the sale of intoxicating, spirituous, vinous, and malt liquors, and the mixture thereof, in quantities less than 10 gallons in the counties of Knox and Whitley, approved April 15, 1884, and of the acts amendatory thereof. A demurrer was interposed to the indictment and overruled by the court. The indictment is in the usual form and is not subject to criticism.

The undisputed facts show that the appellant was a licensed distiller; that, within 12 months before the finding of the indictment, T. S. Wilson, Bob Smith, and others, met in a public road within 15 or 20 steps of the residence of the appellant, and agreed "to go in" and buy some whisky. Each man who was to share in the whisky signed his name to a paper, showing how much money he had contributed to the fund. When a sufficient sum was contributed, some one of the subscribers went to the premises of defendant, purchased a five-gallon keg of whisky, brought it out into the road, and within 75 yards, and in view, of the dwelling house of appellant, divided it among the subscribers in proportion to the amount of money subscribed by each. They used a faucet to draw the whisky, and a cup to divide the same, and the witnesses say that "the cup and faucet came out with the keg."

The trial court instructed the jury as follows: "If you shall believe from the evidence, beyond a reasonable doubt, that the defendant, Brit Farris, in this county, and within 12 months next before the date of the indictment, and at the time mentioned by the witnesses, sold directly or indirectly to the witnesses, Wilson, Smith, and Hiram Cain, or either of them, spirituous, vinous, and malt liquors in such manner as that they or either one of them were enabled to receive a quantity less than five gallons to himself, then you ought to find him guilty and fix his punishment at any fine not less than $60 nor more than $100, or, in lieu thereof, imprisonment in the county jail not less than 10 nor more than 40 days, or you may both fine and imprison him within these limits, at your discretion, according to the proof. Or, if you shall believe from the evidence, beyond a reasonable doubt, that the defendant had a scheme, plan, device, arrangement, or subterfuge to which he was a party, and which he had arranged whereby and so that he could sell liquor under the guise of selling it as in five-gallon quantities or over, and did for the purpose and knowing that it was to be divided there on the premises or near by, and he arranged it so as to divide it in that way among his purchasers, with the design or for the purpose, or so as he knew they would get that in quantities less than five gallons, and that was part of his scheme to distribute his liquor to the public, he receiving pay therefor, and he did this within 12 months next before the date of the indictment, so as that the witnesses received their part of the liquor, less than five gallons in a way commonly known as a 'divide,' to which he was a party and participated therein by himself or his agent, then he is guilty, and you ought to so find and fix his punishment as in instruction No. 1. If you believe from the evidence, however, that the defendant was engaged in good faith as a distiller in selling his product to the trade--that is to say, to persons who were retailing liquor and who were licensed retailers or wholesalers for that matter, or was selling it in wholesale to such persons, and in that way made the sale in good faith, and not to be divided on the premises under a scheme or plan or device or subterfuge, among the purchasers, so as that they would get it in quantities less than five gallons--then he is not guilty, and you should so find. If you have a reasonable doubt of the defendant having been proven guilty, then you ought to find him not guilty. If you find him guilty, you may say that he be placed at hard labor one day for each one dollar of the fine and cost, if he shall fail to pay or replevy; but that is a matter within your discretion."

The appellant complains that the foregoing instructions are erroneous and were prejudicial to the appellant. The first instruction is erroneous, in that appellant might have sold the liquor to the witnesses, Wilson, Smith, or Cain, or any one of them, in such manner that they or one of them were enabled to receive a quantity of less than five gallons, without being guilty, unless he so sold the liquor with the knowledge, understanding, purpose, or design that it would be so received. Instruction No. 2 is strong and well adapted to cases like the one before us. It may, however, be subject to the criticism that it does not sufficiently connect the purchasers or any one of them with the transaction. Instruction No. 3 is erroneous, in that it restricts the right of the distiller to sell only to persons who are licensed retailers or wholesalers; whereas, the statute requires no such qualification.

This court is of the opinion that the trial court should have instructed the jury as follows: "(1) If you shall believe from the evidence, beyond a reasonable doubt, that the defendant, Brit Farris, in this county, and within 12 months next before the date of the indictment, and at the time mentioned by the witnesses, sold directly or indirectly to the witnesses, Wilson, Smith, and Hiram Cain, or any one of them, spirituous, vinous, or malt liquors in quantities less than five gallons, then you should find the defendant guilty, and fix his punishment at any fine not less than $60 nor more than $100, or imprisonment in the county jail for not less than 10 nor more than 40 days, or you may both so fine and imprison the defendant within these limits, at your discretion. (2) Or, if you shall believe from the evidence, beyond a reasonable doubt, that the defendant had a scheme, plan, device, arrangement, or subterfuge, to which he was a party, and which he had arranged, whereby he could sell liquor under the guise of selling it in quantities of five gallons or over, and with the knowledge, purpose, or design that it was to be divided there on his premises or near by, so that the purchasers, or any of them, would receive less than five gallons as his portion, and that that was part of defendant's scheme to sell and distribute his liquor to the public, and that, in pursuance of said plan, device, or subterfuge, he sold the liquor in question at the time mentioned by the witnesses, and within 12 months next before the date of the indictment, to the witnesses, Wilson, Smith, and Hiram Cain, or any one of them, with the knowledge, purpose, or design that they, or any one of them, would receive less than five gallons as his portion of the liquor purchased, then the defendant is guilty, and you ought to so find and fix his punishment as provided by instruction No. 1. (3) If, however, you believe from the evidence that the defendant is a manufacturer or wholesale dealer, and that he, in good faith and in the usual course of trade, sold the liquor in question to the witnesses in quantities of not less than five gallons delivered at one time and not to be drunk on the premises, and not to be divided among the purchasers under a scheme, plan, device, or subterfuge to which he was a party, by which they or any one of them received a portion of less than five gallons, then you should find defendant not guilty. (4) If you find the defendant guilty, you may or not, in your discretion, say that he be placed at hard labor, one day for each one dollar of the fine and costs, if he shall fail to pay or replevy the same. (5) If, from the evidence in the case, you entertain a reasonable doubt of the defendant's guilt, then you should find him not guilty."

Judgment reversed, and cause remanded for a new trial consistent with this opinion.

Ky.App. 1907.
FARRIS v. COMMONWEALTH.
104 S.W. 288, 31 Ky.L.Rptr. 847, 126 Ky. 463

Case Six
Court of Appeals of Kentucky.
FARRIS v. COMMONWEALTH.
Sept. 19, 1907.


Appeal from Circuit Court, Knox County.
Not to be officially reported.
P. B. Ferris was convicted of violating the local option law in force in Knox county under the act of the General Assembly of 1884, and he appeals.

Reversed and remanded for a new trial, with directions.
CLAY, C.
Appellant, P. B. Farris, was indicted a second time, tried, and convicted in the Knox circuit court for the offense of violating the local option law in force in Knox county. The facts in this case are very similar to those in the case of P. B. Farris v. Commonwealth of Kentucky (on indictment No. 356, this day decided) 104 S. W. 288. Instructions Nos. 2 and 4, while not identical are substantially the same as those given in the above case, and are erroneous, for the reasons therein indicated.

Wherefore judgment is reversed, and this cause remanded for a new trial, with directions to the trial court to follow, as far as practicable, the instructions given in the case of Farris v. Commonwealth on indictment No. 356.

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