Citation Numbers: 207 Ky. 98
Judges: Clay
Filed Date: 2/3/1925
Status: Precedential
Modified Date: 7/24/2022
Opinion op the Court by
Affirming.
This is an appeal from a judgment convicting appellant of a violation of the prohibition act, and fixing his punishment at a fine of $300.00 and six months in jail.
The indictment charged appellant with unlawfully-manufacturing, possessing, selling, bartering, giving away, keeping for sale, and transporting,- intoxicating liquor. He failed to appear at the trial, and the court instructed the jury to find him guilty and fix; -his punishment at any sum not less than $100.00, nor more than $500.00, and imprison him in the county jail for not less than 60 days nor more than six months.
It is first insisted that the court erred in refusing appellant a new trial on account of unavoidable absence. The substance of his affidavit is, that he lived about 25 miles from Pikeville, where the court was in session. On the day before the trial he came to Pikeville, but -one of his small children was quite sick -and he promised his wife t-o return that night. His child was so sick that he should not have left the next morning, but, notwithstanding its illness, he came to Pikeville. Because of the route and distance he had to travel he did not arrive until after the trial had taken place. As appellant’s affidavit was not supported by that of a physician, or anyone else, we are not prepared to say that the court abused a sound discretion in refusing him a new trial on the ground that he was unavoidably absent when -the case was called.
Another contention is that the indictment was duplicitous. This may be conceded, but as appellant did not raise the question in the proper way before trial, the duplicity was cured by the verdict, and the objection is
The further point is made that the court erred in providing in the judgment that if appellant failed to execute a peace 'bond in the sum of $2,500.00, he should be confined for a further period of 90 days, that is, for a period of 90 days in addition to the six months for which he had been sentenced. It is true that we held in Roberts v. Dover, Jailer, 200 Ky. 352, 254 S. W. 1058, that the court was without power to defer the commencement of imprisonment for failure to execute a peace bond until after the accused had served his sentence for violation of the prohibition law, yet as no appeal lies from an order requiring a peace bond, we are not at liberty to reverse the judgment oh that account, but appellant may obtain the necessary relief by proper motion in the circuit court.
Judgment affirmed.