Bergmeyer v. Commonwealth , 3 Ky. L. Rptr. 823 ( 1882 )

Opinion by

Judge Hargis :

It is provided by § 2 of an act to regulate the sale of spirituous, vinous and malt liquors in the county of Greenup that “if any person or persons shall sell or dispose of any spirituous, vinous or malt liquors in Greenup county, in less quantities than one-half gallon, they shall be deemed to have violated the general laws of this commonwealth made and provided against keeping a tippling house, and, upon presentment and conviction, shall be subjected to the penalties therein provided for against such offenses.” 2 Sess. Acts (1878), Ch. 1062.

The appellant was, subsequent to the passage of said act, indicted, tried and convicted of the offense of selling malt liquors in a less quantity than a one-half gallon in said county, and iined the sum of $60, which is the penalty for keeping a tippling house, and he has appealed from the judgment.

The act which is forbidden and made punishable by this statute, is the sale or disposition by bargain, of either spirituous, vinous or malt liquors in quantities less than one-half gallon, and the penalty prescribed for that offense is the same as that denounced against persons for keeping a tippling house. There is but one penalty for keeping a tippling house provided by the general laws of this commonwealth, and that penalty is $60. The statute under consideration has no reference to the acts necessary to constitute the offense of keeping a tippling house under the general law. This statute refers to those laws solely for the purpose of fixing the penalty for the act forbidden by it.

Roe & Roe, Wm. Lindsay, for appellant. P. W. Hardin, for appellee.

It was not necessary for the commonwealth to show that the appellant had been guilty of twice selling, in order to convict him of the offense charged; but it was competent to show, by the evidence, any number of sales which appellant may have made to the person named in the indictment within one year prior to the finding of it, as to all of which, so shown, this trial would be a bar to any future prosecution therefor. Nor is it the law, as urged, that one act of selling subjects the offender, under this act, to the penalty fixed by the general laws for retailing.

This act is particular in its application to Greenup county, and it prohibits the authorities from licensing persons tó sell and also authorizes the infliction of a fine upon all persons who sell spirituous, vinous or malt liquors in any quantity less than one-half gallon in said county. The amount of the fine can not be any more or less than is inflicted by the general laws for keeping a tippling house, because the special statute says so in so many words, and we are not authorized by construction to do away with their plain import.

Judgment affirmed.