Citation Numbers: 182 Ky. 745
Judges: Settle
Filed Date: 1/16/1919
Status: Precedential
Modified Date: 7/24/2022
Opinion op the Court by
Affirming.
This appeal comes to us from the Whitley circuit court, and is prosecuted from a judgment of that court sustaining a demurrer filed to the petition by appeellee in a penal action brought against it by the appellant, Commonwealth of Kentucky, to recover a fine of $200.00 for an alleged violation by it of section 2569b, subsection 3, Kentucky Statutes. The only question presented by the appeal for our decision is, does the petition state a cause of action?
Subsection 3, section 2569b, provides: “All railroad, express or other transportation companies within the state, or doing business within this state, are hereby required to keep at each local office in territory within which the sale of intoxicating liquors for beverage purposes is prohibited by any law, a separate book, in which shall be entered immediately upon .receipt thereof, truthful statements of the amount and kind of liquor received, the name and address of the consignor, the name and address of the consignee, the purpose for which said liquor is intended to' be used, as stated upon the outside of the package containing such liquor; the date when received, the date when delivered, and by whom and to whom delivered;- after which record shall be a blank space in which the consignee, by himself or his agent, shall be required to sign his true name before such liquors are delivered to such consignee or his agent,
It will readily be seen that the failure of the carrier to obey any of the several mandatory provisions of the statute, supra, will subject it to the penalty imposed by its terms, whether it'be a failure to keep the required book at a local office in territory where the, sale of liquors is prohibited; to make any one of the entries required; or to keep the book open to public inspection during business hours. In a penal action brought by the Commonwealth to recover the penalty prescribed by the statute for its violation, in order to state a cause of action, the petition must contain substantially the same.averments that would be required for the 'statement of the same offense in an indictment under the statute.
It is a necessary ingredient of the offense charged in the petition that there should have been a shipment or shipments and delivery by appellee of spirituous, vinous or malt liquor in the prohibited territory; otherwise the keeping of the book required by the statute would be unnecessary; and if is a fundamental rule of criminal as well as civil pleading, that a fact necessary to be proved must be alleged in the pleading.' Therefore, if in a penal action the petition omits to allege a fact or facts constituting an essential ingredient of the offense for which the penalty is sought to be recovered, such omission will render the petition bad on demurrer.
The petition in this case alleged in general terms a violation of the statute by appellee in the following particulars :
(1) The failure of the appellee to keep the book in which should be entered, immediately upon receipt thereof, truthful statements, etc., showing the receipt and delivery of liquors: (2) the failure to keep such book open
Not only is the petition fatally defective in the particular indicated, but it is equally so in failing to allege that the inspection of the book requested by and .refused to J. P. Hickey occurred during business hours. While it is true the petition avers that appellee £ £ did unlawfully fail and refuse to keep open for public inspection during business hours of said defendant company, at its local office, at Wofford, a separate book, etc,” it fails to allege that the inspection requested by Hickey and refused by appellee was during the business hours of the company.
As the defects in the petition already pointed out authorized the judgment of the circuit court sustaining the demurrer thereto, we are relieved of the duty of deciding other questions raised by the brief of. counsel for appellant; hence those questions are not pasaed on.
Judgment affirmed.