4. INTOXICATING LIQUORS OF EXPRESS COMPANY TO KEEP RECORDS. 179-FAILURE (ered, 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, which book shall be opened to public inspection at any time during the business hours of said company. Such book shall constitute prima facie evidence as to the facts therein stated, and be admissible as evidence in any court in this In action against defendant express company for violation of Ky. St. § 2569b, subsec. 3, court properly instructed that defendant was guilty if it delivered package of liquor without entering or causing to be entered truthful statements of amount and kind of liquor or date when received or by whom and to whom delivered, since, if any one or more of the entries mentioned were not made, defendant was amenable to the fine prescribed. 5. INTOXICATING LIQUORS 188 — FAILURE state. Any railroad, express or other transTO KEEP RECORD OF SHIPMENT. In action against defendant express company for delivering liquor without entering upon a separate book the amount and kind of liquor, etc., evidence held sufficient to show a violation of Ky. St. § 2569b, subsec. 3. Appeal from Circuit Court, Harlan County. Penal action by the Commonwealth against the Adams Express Company, for alleged violation of Ky. St. § 2569b, subsec. 3. Judgment for the Commonwealth, and defendant appeals. Affirmed. Joseph S. Graydon and Lawrence Maxwell, both of Cincinnati, Ohio, and Zeb A. Stewart, of Harlan, for appellant. Charles H. Morris, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen., for the Common wealth. portation company, or any employé or agent thereof who fails, neglects, or refuses to comply with the provisions of this section, or who makes, or causes to be made, any false entry in said book, shall be deemed guilty of a misdemeanor, and for each offense shall be lars, nor more than two hundred dollars, or punished by a fine of not less than fifty dolimprisoned in the county jail not less than thirty days nor more than six months, or both such fine and imprisonment, in the discretion of the jury." The petition, after setting forth the facts, lan county is prohibited by law, the receipt that the sale of intoxicating liquors in Harby appellant at its local office in the town of Harlan, in Harlan county, of a package of liquor shipped from Lebanon, Ky., and its delivery by appellant to the consignee, Tom Howard, then alleges that appellant "unlawfully delivered said liquor to the said con signee or his agent, * without enter SETTLE, J. In this penal action, brought in the Harlan circuit court, the appellee, commonwealth of Kentucky, recovered of the ap-ing, or causing to be entered, upon a sepapellant, Adams Express Company, a verdict rate book kept for that purpose truthful stateand judgment of $75, by way of a fine for its ments of the amount and the kind of liquor alleged violation of section 2569b, subsec. 3, received, the name and address of the consignor, the name and address of the conKentucky Statutes. The express company insists that the conviction was unauthorized, signee, the purpose for which said liquor was and by this appeal urges the reversal of the intended to be used as stated upon the outjudgment on the grounds: First, that the pe- side of the package containing such liquor, tition does not state a cause of action, viz. the date when received, the date when delivan offense under the statute; second, that ered, and by whom and to whom delivered." the trial court erred in instructing the jury; [1, 2] The averments of the petition clearly third, that the verdict of the jury is unsup-charge a violation by the appellant of subported by and flagrantly against the evi- section 3 of the statute, supra, in the several dence. The first of the above grounds of particulars mentioned. It does not, as claimcomplaint was presented in the court belowed by appellant, charge more than one ofby a general demurrer filed by appellant to fense. The offense charged is a violation of the petion, which that court overruled. the section resulting from appellant's disoSubsection 3, section 2569b, Kentucky Stat-bedience of certain of its provisions growing utes, provides that all carriers shall keep, at out of the single transaction set forth, viz. each office and territory within which the the receipt and delivery by it to Howard of sale of intoxicating liquors is prohibited by the package of liquor transported by it as law. "a separate book, in which shall be en- carrier from Lebanon to Harlan. The oftered immediately upon receipt thereof, truth-fense denounced by subsection 3 would be as ful statements of the amount and kind of completely established by proof of the carliquor received, the name and address of the rier's disobedience of any number of the reconsignor, the name and address of the con-quirements of the section less than the whole, signee, the purpose for which said liquor is or of any one of them, as by its disobedience intended to be used, as stated upon the out-of all of them. But whether all, several, or side of the package containing such liquor; only one of these requirements is disobeyed the date when received, the date when deliv-by the carrier in a single delivery of liquor For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of the entries mentioned were not made in the book kept by appellant for that purpose it was amenable to the fine prescribed by the statute. to the single consignee, it will and does constitute but a single offense under the statute. [3] Manifestly, if in a penal action or indictment against the carrier for a violation of one of the provisions of the section in ques- [5] Appellant's third contention, that the tion or of a specified number of them short evidence fails to show its noncompliance with of the whole, committed in a single delivery the requirements of the statute in the parof liquor to the consignee, the conviction or ticulars alleged in the petition, is not supacquittal of the defendant results, such car- ported by the record. Only two witnesses rier could not, in another penal action or un- testified in the case, W. J. Wilson and W. L. der another indictment growing out of the Ward; the former being the agent of appelsame delivery of liquor, be convicted of a lant at Harlan, and the latter his assistant violation of other provisions of the section or clerk. Both testified that the delivery of than those for which he was tried in the the package of liquor in question was made prosecution first disposed of. The judgment to the consignee, Howard, by Ward, and that in the first prosecution would bar a convic- he also made such entries regarding the detion in the second. Crim. Code, § 126; Nich-livery as appear in the book kept by appelols v. Commonwealth, 78 Ky. 180; Fisher v. lant for that purpose. According to their Commonwealth, 1 Bush, 212, 89 Am. Dec. 620. further testimony there was entered in the It is apparent from what has been said that book statements showing that a "Pa Liq," the petition does not contain a misjoinder of meaning package of liquor, was received from offenses, or set forth more than one offense; the "Leb Liq. Co.," meaning the Lebanon Liqhence the action of the circuit court in over- uor Company, and the further entries show ruling the demurrer to the petition was not Tom Howard to be the consignee, and Harlan the place of delivery, and that the name Harlan was not written, but was indicated by ditto marks made in the column under that name as the place of delivery of a different package of liquor previously shipped from the same consignor to a consignee other than Howard. Both witnesses admitted that the quantity and kind of liquor consigned to Howard was stated on the package containing it, but that there are no entries in the book showing the quantity or kind of liquor delivered by appellant to Howard or the date of such delivery. Ward testified, however, that there was on the book of appellant an entry showing that two quarts contained in the package consigned to Tom Howard by the Lebanon Liquor Company had been broken. error. The complaint of instruction No. 1, made by the second contention of appellant, cannot be sustained. The complaint is based on the erroneous assumption that more than one offense is stated in the petition, and that the use of the disjunctive "or" in the instruction authorized the jury to find appellant guilty of any one or all of three offenses, whereas, it is insisted, the question whether it was guilty of one of the offenses is the only one that should have been submitted to the decision of the jury, if there were any evidence conducing to show such guilt. [4] It is insisted, however, that the evidence fails to show appellant guilty of any offense, for which reason the jury should have been peremptorily instructed to return a verdict of acquittal. Unless counsel for appellant are within the record in asserting that there was no evidence upon which to predicate the instruction, the jury were properly advised by it of the law of the case. As the offense charged in the petition might have been committed in several ways, it correctly told them, in substance, that they should find appellant guilty if they believed from the evidence beyond a reasonable doubt that it delivered the package of liquor to the consignee without entering, or causing to be entered, upon a separate book kept for that purpose, truthful statements of the amount and kind of liquor received as stated upon the outside of the package containing such liquor, or the date when received, or by whom and to whom delivered. If any one or more So if it be conceded that the abbreviations and ditto marks mentioned constitute such entries as sufficiently show the name of the consignor of the liquor, the name of the consignee, and place of delivery, it is apparent from the evidence that the book of appellant contains no entries showing the quantity or kind of liquor received and delivered, or the date of the delivery. There was therefore evidence which conduced to prove appellant's violation of the statute in the two particulars last mentioned. This being true, appellant was not entitled to the peremptory instruction asked by it; nor was there any error committed by the court in submitting the case to the jury. The record furnishes no cause for disturb ing the verdict of the jury, wherefore the judgment is affirmed. ADAMS EXPRESS CO. v. COMMON- (Court of Appeals of Kentucky. Jan. 16, 1919.) 1. INTOXICATING LIQUORS 188 FAILURE OF CARRIER TO PROPERLY RECORD DELIV ERIES EVIDENCE. Evidence that in delivering package defendant express company's agent made in its book kept for that purpose no entries showing quantity or kind of liquor delivered or date of delivery, although label on package showed that it contained five quarts of whisky, was sufficient to support verdict against the company in penal action under Ky. St. § 2569b, subsec. 3. 2. INTOXICATING LIQUORS TION-REVIEW-VERDICT. 193-PENAL AC There being evidence to support verdict in a penal action under Ky. St. § 2569b, subsec. 3, court on appeal is without authority to disturb it. 3. INTOXICATING LIQUORS 191- FAILURE OF CARRIER TO PROPERLY RECORD DELIVERIES-FORMER JUDGMENT. Conviction under Ky. St. § 2569b, subsec. 3, with reference to recording deliveries, grow ing out of violation with respect to a shipment and delivery of whisky to one individual, would not be a bar to penal action growing out of shipment and delivery to another individual; the two offenses being distinct, though deliveries were made at the same time and place. particulars charged in the case, supra. In this case, as in that, the appellant filed a general demurrer to the petition, which was overruled. As the grounds filed in support of its motion for a new trial, made in the court below and now urged on this appeal for the reversal of the judgment of convic tion, are identical with those relied on in appeal No. 73, we deem it unnecessary to here repeat what is said in the opinion of that case in approval of the circuit court's action in overruling the demurrer to the petition or in approval of the instruction given in that case and also in the instant case, to which appellant then objected and now objects. [1, 2] The evidence in this case was furnished by Wilson and Ward, who also tesWithout reviewing tified in the other case. it in detail, it is sufficient to say that there was evidence conducing to prove that in delivering to Hensley the package of liquor it received for him from the Lebanon Liquor Company, appellant's agents made in its book kept for that purpose no entries that can be said to show the quantity or kind of liquor delivered or date of the delivery. Appellant was only required to follow the statement or label on the package in making the entries in its book of the quantity and kind of liquor contained therein; and, while it appears that there was on the package consigned to Hensley a label showing it contained five quarts of whisky, appellant's agents failed to avail themselves of this information in making the required entries. As some of the matters of fact connected with the delivery of the liquor were not, as required by the statute, recorded in the book kept by appellant for that purpose, it cannot complain that it was subjected to the penalty Stew-prescribed for such failure; and, as there was evidence to support the verdict of the jury, we are without authority to disturb it. Appeal from Circuit Court, Harlan County. Penal action by the Commonwealth against the Adams Express Company, charging the company with a violation of Ky. St. § 2569b, subsec. 3. Judgment for the Commonwealth, and defendant appeals. Affirmed. Lawrence Maxwell and Joseph S. Graydon, both of Cincinnati, Ohio, and Zeb A. art, of Harlan, for appellant. Charles H. Morris, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen., for the Commonwealth. SETTLE, J. This appeal, like that of Adams Express Co. v. Commonwealth of Kentucky, 207 S. W. 482, numbered 73, this day decided, is prosecuted from a judgment of the Harlan circuit court, entered upon the verdict of a jury finding appellant guilty of a violation of section 2569b, subsec. 3, Ky. St., and fixing its punishment at a fine of $100. The liquor received and delivered by appellant was shipped to Harlan from Lebanon, Ky., the consignor being the Lebanon Liquor Company and the consignee, W. C. Hensley. The prose cution was by a penal action; the petition alleging a violation of the statute in the same [3] Appellant's plea of former conviction is wholly without merit. Its conviction in case 73 grew out of its violation of the statute in respect to a shipment and delivery of whisky to Tom Howard; the violation of the statute in this case, out of a shipment and delivery of whisky to W. C. Hensley. The transactions were separate, and the offenses as legally distinct as if they had been committed at different points of delivery. Violation of the requirements of the statute by the carrier in a distinct delivery to a named consignee of intoxicating liquors in dry territory is of itself a separate offense, independent of any other delivery to another consignee, though made at the same time or place. Judgment affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes a penal action brought against it by the ap COMMONWEALTH v. ADAMS EXPRESS pellant, commonwealth of Kentucky, to re CO. cover a fine of $200, for an alleged violation (Court of Appeals of Kentucky. Jan. 16, 1919.) by it of section 2569b, subsec. 3, Kentucky 1. INTOXICATING LIQUORS 179. PENALTY -FAILURE TO KEEP RECORD OF DELIVERIES -ELEMENTS OF OFFENSE. The failure of carrier to obey any of mandatory provision of Ky. St. § 2569b, subsec. 3, will subject it to the penalty imposed, whether there be a failure to keep required book at local office in territory where 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. 2. INTOXICATING LIQUORS 187 PENAL ACTION-FAILURE TO KEEP RECORD OF DELIVERIES-PLEADING. In action to recover penalty prescribed by Ky. St. § 2569b, subsec. 3, as to keeping records of consignments of liquor, 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. FAILURE 3. INTOXICATING LIQUORS 187 4. INDICTMENT AND INFORMATION 60 — AL- 5. INTOXICATING LIQUORS 187-PENAL ACTION-FAILURE TO KEEP RECORD OF DELIVERIES-PLEADING. In action to recover penalty prescribed by Ky. St. § 2569b, subsec. 3, petition, alleging that defendant express company did unlawfully fail and refuse to keep open for public inspection book containing entries with reference to consignments of liquor, was fatally defective, where it failed to allege that inspection requested and refused was during business hours. Appeal from Circuit Court, Whitley County. Penal action by the Commonwealth against the Adams Express Company, charging the company with a violation of Ky. St. § 2569b, subsec. 3. Demurrer to petition sustained, and the Commonwealth appeals. Affirmed. Chas. H. Morris, Atty. Gen., and J. B. Snyder, of Williamsburg, for the Commonwealth. Lawrence Maxwell and Jos. S. Graydon, both of Cincinnati, Ohio, and Tye & Siler, of Williamsburg, for appellee. SETTLE, J. 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 appellee in Statutes. The only question presented by the appeal for our decision is, Does the petition state a cause of action? Subsection 3, § 2569b, provides: "All railroad, express or other transportation companies within this state, 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 signee or his agent, which book shall be open to before such liquors are delivered to such conpublic inspection at any time during the business hours of said company. Such book shall constitute prima facie evidence as to the facts therein stated, and be admissible as evidence in any court in this state. Any railroad, express or other transportation company, or any employé or agent thereof who fails, neglects, or refuses to comply with the provisions of this section, or who makes, or causes to be made, any false entry in said book, shall be deemed guilty of a misdemeanor, and for each offense shall be punished by a fine of not less than fifty dollars, nor more than two hundred dollars, or imprisoned in the county jail not less than thirty days nor more than six months, or both such fine and imprisonment, in the discretion of the jury." [1] It will readily be seen that the failure of the carrier to obey any one 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. [2] 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. [3, 4] 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 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes by the statute would be unnecessary; and it 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 alleges 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 to public inspection at any time during the business hours of the company. Obviously, in order to establish appellee's guilt of either of these offenses, it is necessary that it be made to appear liquors were received and delivered by appellee or its agent at the local office of the former in the prohibited territory. Unless and until liquors have been so received, there can be no obligation or duty upon appellee to keep or provide the book or to enter therein the transactions with respect to the reception and delivery of liquors required by the statute. It is, perhaps, sufficiently alleged in the petition that appellee had a book for keeping a record of the liquors that might be received or delivered by it, but it is not explicitly alleged therein that it had either received or delivered any spirituous, vinous, or malt liquors; and, if no such liquors were received or delivered by it, its failure to keep a book containing entries necessary to show transactions such as are here charged, or the keeping of it open for public inspection during business hours, was not required by the statute. In other words, if it neither received nor delivered such liquors, appellee could not have been guilty of the offense or offenses charged in the petition. FIRE QUESTIONS OF FACT. Evidence held not sufficient to require submission to the jury of defendant's negligence in emitting sparks from its locomotive. 2. NEW TRIAL 102(5)-GROUNDS-NEWLY DISCOVERED EVIDENCE. In an action for loss by fire from sparks from defendant's locomotive, a new trial will not be granted plaintiff on the ground of newly § 340; it appearing that the evidence could discovered evidence, in view of Civ. Code Prac. have been discovered by inquiry from a witness in the case. 3. NEW TRIAL 108(1)-GROUNDS-NEWLY DISCOVERED EVIDENCE. ground of newly discovered evidence, unless A new trial will not be granted on the the evidence be of a decisive character and such as to render a different result reasonably certain. Appeal from Circuit Court, Boone County. against the Cincinnati, New Orleans & Texas Action by the Home Insurance Company Pacific Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed. W. W. Dickerson, of Cincinnati, Ohio, and Chas. Strother, of Walton, for appellant. John M. Lassing and N. E. Riddell, both of Burlington, and Galvin & Galvin, of Cincinnati, Ohio, for appellee. QUIN, J. A house owned by T. J. Crowe, in the town of Walton, was destroyed by fire about 2 o'clock in the afternoon of June 2, 1914. The property was situated between the right of way of the appellee on the east and the Louisville & Nashville Railroad Company on the west. It was insured for $1,000 in the appellant company and for a like [5] 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 re-amount in the Hartford Insurance Company. fuse 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. The company having settled the loss, an assignment was taken for the amount paid, and this suit instituted to recover the amount of said policy; it being alleged that the loss was due to the negligence and carelessness of appellee. The case was assigned to a day for trial, As the defects in the petition already point- and both parties announced ready. At the ed out authorized the judgment of the circuit close of plaintiff's testimony, a motion for a court sustaining the demurrer thereto, we peremptory instruction was made and susare relieved of the duty of deciding other tained. Motion and grounds for a new trial For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |