Dearing v. Commonwealth ( 1923 )

Opinion op the Court by

Judge Moorman

Affirming.

On the 14th. day of June, 1922, appellant, Ike Dearing, was indicted in Caldwell county charged with unlawfully selling intoxicating liquor to Garfield Ray, not for sacramental, scientific, mechanical or medicinal purposes. The offense was alleged to have been committed within one year before the finding of the indictment. He was convicted and fined $175.00 and sentenced to thirty days in jail.

On this appeal two errors are assigned: First, the refusal of the trial court to instruct the jury to find the accused not guilty at the conclusion of the Commonwealth’s- evidence; and, second, error in one of the instructions, whereby the jury was authorized to impose the penalties prescribed by the Act of the General Assembly of 1922 known as the Rash-Gullion Act, when in fact the evidence showed that the offense was committed prior to the effective date of that Act.

The ground of the first contention is that the conviction cannot be sustained unless there was some evidence tending to show that the offense was committed within twelve months before the finding of the indictment. With that statement we agree, but we are unable to concur in counsel’s application of it to the facts in this case. There was evidence of the commission of the offense within the period charged in the indictment, and, in our opinion, it was sufficient to warrant the submission of that question to .the jury. Gordon v. Commonwealth, 136 Ky. 508; Commonwealth v. Little, 140 Ky. 550. It cannot, therefore, be held that the motion for a peremptory instruction should have prevailed.

With regard to the next contention it appears that the indictment was returned- on June 14, 1922, and the offense was charged to have been''committed within one year before that date. The Rash-Giillion Act became the law March 22, 1922. The penalties it imposes for the offense with which appellant was charged differ from the penalties imposed by the act that it superseded in that under the old law the lowest fine authorized to be assessed for a conviction was $50.00, whereas under the Rash-Cullion Act the lowest fine is $100.00 and, in addition, the court of first instance, on the first conviction, is obliged to require the defendant to execute a bond in a sum of not less than one thousand nor more than five thousand dollars to be of good behavior and not violate any of the provisions of the Act for one year. Appellant was fined $175.00 and required to give a bond of $1,000.00.

The evidence did not show that appellant committed the offense subsequently to March 22, 1922, but, as we have seen, it tended to show that it was committed within one year of the date of the finding of the indictment. It was, therefore, error to authorize the jury to impose the penalties prescribed by the new law. That error, however, was not prejudicial as to the fine assessed, since the fine Avas $175.00, a larger amount than the minimum and Avithin the maximum fine authorized by the old law. Accordingly it cannot be.said that the instruction was prejudicial. Field v. Commonwealth, 197 Ky. 229.

Under the law in effect prior to March 22, 1922, the court had no power to .require a bond for the good behavior of the accused upon his first conviction. The conviction not being'for an offense committed after March 22, 1922, it is clear that the bond for $1,000.00 is void.

Our conclusion is that the error in the instruction was not prejudicial and the judgment of conviction was proper, but the bond that appellant was required to give is void. The judgment is affirmed.