October 1, 2012

Combast v. Commonwealth, Pulaski, 1910

Combast v. Commonwealth


137 Ky. 495; 125 S.W. 1092; 1910 Ky. LEXIS 593

March 4, 1910, Decided

PRIOR HISTORY:  [***1]  Appeal from Pulaski Circuit Court.
B. J. BETHURUM, Circuit Judge.
Defendant convicted and appeals.--Affirmed.

DISPOSITION: Judgment affirmed.

COUNSEL: L. G. CAMPBELL for appellant.

JAMES BREATHITT, Attorney General, and TOM B. McGREGOR, Assistant Attorney General, for commonwealth. 




Appellant, Aaron Combast, was indicted by the grand jury of Pulaski county for the violation of section 2558a, Ky. St., which is a part of the local option law. His demurrer to the indictment was overruled. He was then placed on trial. The jury found him guilty, and fixed his punishment at a fine of $ 100. From the judgment of conviction he prosecutes this appeal.

The indictment is as follows: "The grand jury of Pulaski county, in the name and by the authority of the commonwealth of Kentucky, accuse Aaron Combast of the offense of selling spirituous, vinous, and malt liquors by wholesale to a person having no retail license, committed in the manner and form as follows, viz: The said Burge on the 1st day of October, 1908, before the finding of [***2]  this indictment, and in the county and state aforesaid, did unlawfully sell by wholesale spirituous, vinous, or malt liquors to George Willson, who did not at the time own or hold a license to retail liquor in Pulaski county, Ky., or any district, precinct, town, or city therein, and contrary to the local option laws and an act of the General Assembly of the commonwealth of Kentucky approved March 19, 1908, and in a territory where said law was then and there in force, against the peace and dignity of the commonwealth of Kentucky."

The facts in the case are as follows: Appellant is a manufacturer of whisky. In the months of September and October, 1908, he sold two casks of whisky, containing 11 gallons each, to one George  [*497]  Willson. At the time of the sales Willson held a regular United States license to retail whisky and malt liquors in Pulaski county. The local option law is in force in that county. The whisky so sold was appellant's own manufacture, and the sale was made at the place of manufacture. There was no evidence tending to show that George Willson had a license from the state of Kentucky, or from any county, city, or district therein; nor was there any evidence [***3]  to the effect that George Willson had been licensed by any other state, or county, district, or municipality there in to retail liquors.

It is first insisted by appellant that the indictment is defective, in that, after having charged him with the offense denounced by the statute in question, the accusatory part of the indictment recites that "the said Burge on the 1st day of October, 1908, before the finding of this indictment, and in the county and state aforesaid, did unlawfully sell," etc. For this reason appellant contends that the court erred either in failing to sustain his demurrer to the indictment or in refusing to dismiss the case.

Section 125 of the Criminal Code is as follows: "An error as to the name of the defendant shall not vitiate the indictment, nor proceedings thereon, and if his true name be discovered at any time before execution, an entry shall be made on the record of the court of his true name, referring to the fact of his being indicted by the name mentioned in the indictment, and the subsequent proceedings shall be in the true name, substantially as follows: 'The Commonwealth of Kentucky against A. B., indicted by the name of C. D.'"

In construing this [***4]  section of the Code, this court, in the case of Commonwealth v. Kelcher, 60 Ky. 484, 3 Met. 484,  [*498]  used the following language: "If the erroneous statement of the whole name of the defendant would not vitiate the indictment, certainly the omission to set out the Christian name of the defendant could not, and the objection to the indictment on that account must be regarded as unavailing." This language was cited with approval in the case of Commonwealth v. Jenkins, 115 Ky. 62, 72 S.W. 363, 25 Ky. L. Rep. 1881. In view of the above section of the Code and of the decisions referred to, we conclude that appellant was not prejudiced by the failure of the court either to sustain the demurrer to the indictment for the reason claimed, or for refusing to dismiss the case. Under the express language of the Code it is declared that an error in the name of the defendant shall not invalidate an indictment or the proceedings thereunder, and the error may be corrected at any time before execution. As no execution has been is sued upon the judgment of conviction, the error in the name may yet be corrected.

Nor is the indictment defective in that part where it charges [***5]  a sale to George Willson, "who did not at the time own or hold a license to retail liquor in Pulaski county, Ky., or any district, precinct, town, or city therein." True, the language would seem to imply that he held no retail license from any district, precinct, town or city in Pulaski county. If the law required such an allegation to be made, doubtless the allegation in question would be insufficient. However, the law is well settled that in an indictment for violation of the local option law it is not necessary  [**1094]  to state in the indictment that the defendant does not come within the exceptions, or to negative the provisos it contains. These are matters of defense, which the prosecutor need not anticipate. Thompson  [*499]  v. Commonwealth, 103 Ky. 685, 45 S.W. 1039, 46 S.W. 482, 698, 20 Ky. L. Rep. 397; Commonwealth v. Risner, 47 S.W. 213, 20 Ky. L. Rep. 538. The allegation complained of, therefore, is mere surplusage, and did not have the effect of making the indictment bad on demurrer.

But appellant claims that he made out a complete defense when he showed that he in good faith made the sales to a party who at the time held a United State [***6]  license. The manifest purpose of the act was to prevent sales by the manufacturer to persons who themselves did not have the right to sell. A license issued by the United States government is purely and simply a form of taxation. It confers no power on the holder to carry on the liquor business in violation of the state laws; nor does it relieve the holder from the necessity of taking out any license or licenses required by the laws of the state, if that is the system therein prevailing. This is not only the doctrine of the adjudged cases, but the statute authorizing the issual of United States government licenses so provides. Black on Intoxicating Liquors, sec. 125. We therefore conclude that the ownership of United States license by the person to whom the sale was made presented no defense to the offense charged.

We deem it unnecessary to decide whether or not a sale to a person having a license from some other state or county, precinct, district, or municipality therein would be lawful. Suffice it to say that the burden was on appellant to show that the sale was made to a licensed retail dealer. He did not attempt to show that the party to whom the sales were made had any other [***7]  license than the one from the United States government. That being the case, he was guilty of the offense charged, and it is immaterial, so  [*500]  far as he is concerned, whether or not the sale would have been lawful or unlawful if made to a person holding a license granted by the proper authorities of another state.
Judgment affirmed.

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