198 Ky. 149
Court of Appeals of Kentucky.
March 6, 1923.
ACTION: Reversed for new trial.

Appeal from Circuit Court, Knox County.

William Jackson was convicted of offenses, and he appeals.

Appellant Jackson was convicted on an indictment accusing him of several different offenses denounced by the new prohibition act (Acts 1922, c. 33) and his punishment fixed at a fine of $500 and confinement in the county jail for a term of 6 months. In prosecuting this appeal he relies upon the following grounds for a reversal of the judgment:

(1) Error of the court in overruling the demurrer to the indictment;
(2) error of the court in admitting incompetent evidence against the appellant and rejecting competent and material evidence offered by him;
(3) error of the court in instructing the jury.

1. The indictment accuses appellant Jackson and one Brock of the offenses of "owning and harboring and controlling a moonshine still and parts of a moonshine still, commonly and exclusively used in the manufacture of spirituous liquors." The specifications in the indictment in part read: "Did unlawfully and willfully own, harbor, and control a moonshine still and parts of a moonshine still, and assist in operating said still." The Statute (section 4) denounces as different offenses the following acts: Buying a moonshine still; bargaining for a moonshine still; selling a moonshine still; loaning a moonshine still; owning a moonshine still; having in possession a moonshine still; owning and transporting a moonshine still. To own a moonshine still is one offense, and to have it in possession is another, and to sell one is another, and to loan one is yet another offense. Under another section of the same Statutes it is provided that to operate or run a moonshine still and manufacture or aid in the making of liquor, is an offense.

As the indictment under which Jackson was convicted charged him with not only owning and controlling a moonshine still but with aiding and assisting in operating the same, it was duplicitous. Appellant, upon the calling of the case, entered a general demurrer to the indictment which the court, after hearing, overruled, to which ruling appellant excepted. This was error prejudicial to the substantial rights of appellant.

2. The court also erred in allowing the commonwealth, over the objection of appellant, to introduce evidence tending to prove two distinct offenses by showing that appellant was guilty of operating a moonshine still at two different times and places. Having first introduced evidence tending to prove that a still was found at the spring near the house of appellant, the commonwealth elected to try appellant for that offense. It was not thereafter competent for the commonwealth to call witnesses in chief and prove that appellant was in possession of a still at an entirely different place and at a different time. The commonwealth had a right to elect for which offense it would prosecute appellant, but it could not prosecute him for both at the same time under the same indictment, nor was evidence of a second and distinct offense competent upon the trial of the first.

Some other minor errors are pointed out, but we deem it unnecessary to consider them, for it is not likely that they will occur on a retrial of the case.

Judgment reversed for new trial.

Ky.App. 1923.


248 S.W. 242, 198 Ky. 149

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