Case 36 — 'Indictment and Conviction op J. L. Cookebell pob Violating Local Option Law.

April 15.

#### Cockerell v. Commonwealth.

APPEAL PROM BULLITT CIRCUIT COURT.

Dependant Convicted and Appeals.

Apfhimed.

Intoxicating Liquors — Local Option — Suppiciency op Indictment —Competency op Evidence — Change op Penalty — Instructions.

•Held: 1. An indictment for a violation of the local option law, charging that defendant unlawfully sold “intoxicating liquors, to-wit, whisky, brandy, ale, beer, and wine, a mixture thereof,” etc., informed the defendant that the intoxicating liquor he was charged with selling contained one or more of the liquids mentioned, and sufficiently described the/ offense, within Or. Code; section 124, requiring an indictment to be direct and certain.

2. Under an indictment charging an unlawful sale of “intoxicating liquors, to-wit, whisky, brandy, ale, beer, and wine, a mixture thereof,” a defendant may be convicted if the' “hop tonic” or “tónica” he had sold was “whisky, brandy, beer, or wine, or a mixture thereof.”

3. Where,' in a prosecution for the violation of the local' option law, the witness to whom it was charged defendant had sold “intoxicating liquors, to-wit, whisky, brandy; beer, or wine, or a mixture thereof,” gave it as his 'opinion that the “tónica” -or "hop tonic” which he admitted defendant had sold him would not produce intoxication, it was competent for the State to prove that hop tonic or tónica is a well known drink, and contains *297some ingredients that will produce intoxication in the same manner as spirituous, vinous, or malt liquors.

4. Though Kentucky Statutes, 1899, section 465, provides that if a penalty or punishment for an offense is mitigated by a provision of a new law taking effect after the commission of an offense, and before the trial of the offender, such provision may, by consent of the parties, be applied to the judgment at the trial, a defendant tried after the law in force at the commission of the offense had Been amended was not prejudiced by an instruction that his punishment would be according to the old law, though the amendment might be taken to have mitigated it, where the record does not disclose that the parties had consented that the penalty be that provided by the amendment.

CHAPEZE *&*HADSTEAD, for appellant.

The indictment charges that the defendant, without a license, sold to P. G. Trunnell, intoxicating liquors, to-wit: whisky, brandy, ale, beer and wine, a mixture thereof, etc.

We submit that the language of this indictment is not sufficient under the code, and the court erred in overruling demurrer thereto. This casé should be reversed for tine following reasons:

1. The indictment is not good because not direct and certain as to the offense charged. It does not indicate to the party what he is held to answer as having sold to the man, Trunnell.

2. The court erred in giving instruction No. 1, which authorizes the jury to find the defendant guilty for -sealing “hop tonic” or “tónica,” if it was whisky, brandy, beer or wine, or a mixture of any two or more of said liquors.

3. The court erred in permitting proof of a sale to another to be given on the trial, as the indictment only charges a sale to Trunne-ll.

4. It was error for the court to admit evidence of others who had sold and drank hop tónica to prove that it was intoxicating, when it did not appear that such, mixture was the same as that sold by appellant. Criminal Code, 124.

CLIE-TON J. PRATT, attorney general, and M. R. Todd, for appellee.

1. The indictment is not bad for duplicity. It contains all the 'essential averments and states the particular circumstances of the offense so far as is necessary to apprise accused of the nature of the charge.

*2982. We fail to see any variance in the proof, and the charge in the indictment which would make the instructions wrong or misleading.

3. The plea of not guilty put in issue every material fact alleged and it was therefore incumbent on the Commonwealth •to prove that “hop tónica” was intoxicating.

AUTHORITIES CITED.

Bishop’s Crim. Procedure, vol. X, secs. 432, 588; Benge v. Com., 13 R., 591; Wilson v. Com., 14 Bush, 159.

Opinion op the court by

JUDOE SETTLE

.Affirming.

Tbe appellant, J. L. Cockerell, was indicted, tried, and convicted in tbe Bullitt circuit court for selling intoxicating liquors in violation of tbe local option law, and bis punishment fixed by verdict of tbe jury at a fine of $100. He was refused a new trial by tbe lower court, and from tbe judgment of that court refusing bim a new trial be prosecutes this appeal.

It is contended for appellant that tbe indictment is defective, and that tbe lower court should have sustained the demurrer filed thereto. We are of opinion that tbe indictment is sufficient, in that it substantially conforms to section 124 of tbe Criminal Code, which provides that “tbe indictment must be direct and certain as regards, first, tbe party charged, second, the offense charged, third, tbe county in which tbe offense was committed, fourth, tbe particular circumstances óf tbe offense charged, if they be necessary to constitute a complete offense.” That part of tbe indictment describing tbe offense charges that tbe appellant “did then and there unlawfully, without license so to do, sell to P. G. TVunnell intoxicating liquors, tow!it, whisky, brandy, ale, beer, and wine, a mixture thereof,” etc. This language in direct and explicit terms, informed appellant of tbe offense charged. It apprised bim of tbe fact that tbe intoxicating liquor which he was *299charged with selling contained one or more of the liquids mentioned. It will not be denied that a drink containing any one of them, or composed of two or more of them, would be an intoxicating liquor, in the meaning of the law. So a sale of such liquor or mixture in territory where local option is in force would constitute a violation of the law. It must be presumed that appellant would know whether the liquid sold by him contained whisky, brandy, ale, beer, ^ssáne, or any mixture thereof; and, if so, he was as well prepared to make defense to the charge presented by the language contained in the indictment as if it had been confined to an averment of the sale of any one1 of them; We are therefore of opinion that the lower court did not err in overruling the demurrer to the indictment.

It is also contended for appellant that the lower court erred in instructing the jury. Instruction No. 1 is, however, the only one complained of, the language of which is as follows: “If the jury believe from the evidence, to the exclusion of a reasonable doubt, that in Bullitt county, wiithin twelve months before the finding of the indictment herein, the defendant, J. L. Cockerell, sold to P. Gr. Trunnell hop tonic or tónica in a quantity. less than five gallons at one time, and that said hop tonic or tónica was whisky, brandy, beer, or wine, or a mixture of any two or more of said liquors, they should find him guilty as charged in the indictment, and fix his punishment at a fine in any sum not less than $100 nor more than $200.” It is claimed by counsel for appellant that this instruction was improper, pecause of the use therein of the words “hop tonic,” or “tónica,” as those words do not appear in the indictment. It is true that the words in question are not found in the indictment, but their use in the instruction was nevertheless proper, as spirituous, vinous and malt liquors are often *300sold under other than their true names, in violation of law; and there could certainly have been nothing misleading in these terms as used in the instruction, for the jury were, in effect, therein told that, in order to convict appellant, they must believe from the evidence, beyond a reasonable doubt, that the drink sold by him as hop tonic or tónica was in fact whisky, brandy, beer, wine, or a mixture of any two or more of such liquors.

It is further contended by counsel for appellant that the lower court erred in allowing the testimony of Fori, Hall, and others, to go to the jury. P. Gr. Trunnell, to whom the appellant sold hop tonic, upon being introduced, admitted the sale to him by appellant of the drink called “hop tonic” or “tónica,” and that hop tonic or tónica, whether called by the one name or the other, is the same drink, but gave it as Ms opinion that it would not produce intoxication. He testified, however, that he was not a chemist, though a physician, and that he had never seen a chemical analysis made of the liquid.' So the witnesses of whose testimony appellant complains were introduced by appellee to prove that hop tonic or tónica is an intoxicating drink, and many of them so stated. According to the testimony of these witnesses, it would seem that hop tonic is a well-known drink; that it contains some ingredient that will intoxicate in the manner in which intoxication is produced by spirituous, vinous, or malt liquors. Upon the other hand, witnesses were introduced by appellant who testified that the drink called “hop tonic” or “tónica” does not contain spirituous, vinous, or malt liquors, and' is incapable, therefore, of producing intoxication. It was the province of the jury to determine whether or not hop tonic would produce intoxication, and, if so, whether its intoxicating effects were caused by the presence therein of spirit*301uous, vinous or malt liquors, such as are named in the indictment', or a mixture thereof. It was therefore relevant and proper for the appqllee to show by the witnesses whose testimony is complained of that hop tonic or tónica is an intoxicating drink; and, in view of the verdict returned by the jury, it is manifest that they were convinced by the evidence, beyond a reasonable doubt, that the drink which was sold by appellant as hop tonic- or tónica wals an intoxicating drink, composed of or- containing spirituous, vinous, or malt liquors, or a mixture thereof.

It is charged in the indictment, and was admitted upon the trial, that the local option law was in force in Bull'itt county when appellant sold the liquor mentioned in the indictment. We deem it proper to state in this connection that the statute known as the “Local Option Law” was amended by act of the General Assembly at its last session, which amendment may be found on pages 41-43, c. 14, of the volume containing the Acts of-1902. The amendment provides that any person, who shall sell, barter, or loan,, directly or indirectly, any spirituous, vinous, or malt liquors-in any territory where local option is in force, shall, upon conviction, be fined in any sum not less than $60 nor more-than $100, or confined in the county jail not less than 10 nor more than 40 days, or both so fined and imprisoned, in the discretion of the jury, whereas, the punishment under the old statute was only a fine of not, less than $100 nor more than $200. The sale of spirituous liquors of which the appellant was convicted was made in 1901, and before the enactment of the amendment referred to, although his trial did not take place until after the almendment went into-effect. The record discloses the fact that the instructions, given on the trial in the lower court directed the jury, in the event that they found appellant guilty to fix his pun*302ishmemt as provided by the old statute. Section 465, Ky. ‘St., 1899, provides that “no new law shall be construed to repeal a former law as to any offense committed against the former law, nor as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued or claim arising under the form of law, or in any way whatever to affect .any such offense, or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued or claim arising before the new law takes effect, save only that the proceedings thereafter had shall conform so far as practicable to the laws in force at the time of such proceeding. If any penalty, forfeiture or punishment be mitigated by any provision of the new law, such provision may, by consent of the party affected, be applied to any judgment pronounced after the new law takes effect.” It will be observed that, though the amendment in question mitigates the punishment provided in the original statute by reducing the fine that was imposed thereby, it allows the jury, in addition to or in lieu of the fine of not less than $60 nor more than $100, to inflict upon the offender against the local option law imprisonment in the county jail not less than 10 nor more than 40 days. In view of the imprisonment that may be imposed under the statute as amended, and which was not permitted to be inflicted under the former statute, it may well be doubted whether the new law mitigates the punishment provided by the former statute. At any rate, it can. not be said that the appellant was prejudiced by the failure of the lower court to instruct the jury to inflict the penalty found in the amendment or new law, as that could not have been done without the consent of' appellant, and such consent is not disclosed by the record.

*303We are unable to see that any error was committed by the lower court to appellant’s prejudice, and the judgment is therefore affirmed.