Case 42. — PROSECUTION AGAINST JARVIS & WILLIAMS FOR VIOLATING- LOCAL OPTION LAW.

April 19.

#### Commonwealth v. Jarvis & Williams.

Appeal from Muhlenburg Circuit Court.

W. P. Sandige, Circuit Judge.

From a judgment sustaining a demurrer to the indictment the Commonwealth appeals.

Reversed.

Indictment — Sufficiency—Selling Intoxicants — Local Option Territory — An indictment wMch. charges that the defendants *335unlawfully and wilfully sold by retail a beverage; liquid mixture, or decoction, which causes or produces intoxication, in territory, in which the sale of spirituous, vinous or malt liquors is prohibited in accordance with the local option law, is good under Kentucky Statutes, sec. 2557a, which prohibits the sale of “any beverage, liquid mixture or decoction of any kind which produces or-causes intoxication,” in such territory, and it is not necessary to name in the indictment the mixture or decoction that was sold.

N. B. HAYS, attorney general, and C. H. MORRIS for appellant.

The indictment under consideration charges “the offense of unlawfully and wilfully selling b,y retail a beverage, liquid mixture or decoction, which produces intoxication, in territory in which the sale of spirituous, vinous or malt liquors is prohibited in accordance with the local option law, * * * did unlawfully and 'wilfully sell by retail to Z. T. Tate a beverage, liquid mixture or decoction, which causes or produces intoxication, in territory in which the sale of spirituous, vinous or malt liquors is now and was 'at the time of said 'sale prohibited in accordance with the local option law.

AUTHORITIES.

Sec. 131, Criminal Code.

JONSON, WICKLIFFE & JONSON for appellees.

POINTS AND ' AUTHORITIES CITED.

Or. Code, sec. 124; Ky. Stats. (1902), sec. 2557b.

1. Indictment defective, because it does not charge “that the act or acts charged were committed in the territory where the said act was in force.” (Crigler, &c. v. Commonwealth, 83 S. W., 587.)

2. Also because it fails to charge the acts cumulatively, and uses the disjunctive “or” instead of .the copulative “and.” (Jones v. ComtaOnwealth, 47 S. W., 328; Raubold v. Commonwealth, 63 S. W., 781.)

3. Also because the indictment in 'its charge is- not direct and certain as to the offense committed, and its failure to state in its charge that the local option law was in force' in the territory named at the time of said sale. (Brooks v. Commonwealth, 32 S. W., 403.)

Opinion by

Judge O’Rear

Reversing.

*336Appellees were indicted and tried under the charge of unlawfully and wilfully selling’ by retail a beverage, liquid mixture, or decoction which causes or produces intoxication, Which acts were alleged to have been committed in territory in which the sale of spirituous, vinous and malt liquors is prohibited in accordance with the local option law. A demurrer was sustained to the indictment.

The indictment is drawn in the language of the statute. Ordinarily, for a «purely statutory offense, as this is, the employment of the language of the statute is deemed sufficiently explicit and certain to satisfy the requirements of sec. 124, Cr. Code Prac. The main criticism made of the indictment is that it charges one of three offenses by charging them in the disjunctive. In Jones v. Commonwealth, 104 Ky., 468; 20 Ky. Law Rep., 651; 47 S. W., 328, it was held that an indictment charging the accused with selling “spirituous, vinous and malt liquors” is not open to the objection that- it charges three offenses. In Rush v. Commonwealth, 47 S. W., 586; 20 Ky. Law Rep., 775, sec. 2557a; Ky. Stats., 1903, under which the indictment in this case was framed, was construed. It was there said: “We are of opinion that the G-eneral Assembly intended to, and we so- hold they did, in passing chapter 30 (Acts 1898, p. 84), declare that to be an offense that theretofore had been no offense or had been doubtful.” Up to the passage of that act, which is now section 2557a, there was no statute in this State punishing the sale of a liquid mixture or decoction which produced intoxication, unless it-was spirituous, vinous or malt liquor. Continuing, the court further said: “It is said that the term ‘any intoxicating beverage’ would certainly and necessarily include spirituous, vinous and malt liquor, even if the other two terms, “liquid mixture *337or decoction,” did hot. We do not think it was' so intended. The clear meaning and intention' of this act was to provide a penalty for the sale in prohibited districts of the various nostrums, bitters, and such like intoxicants sold, and of which it is so difficult to show the ingredients, or whether it comes under the strict definition of spirituous, vinous os. malt liquors. This act was to embrace all other intoxicants of a liquid nature.” It is not necessary, under the statute, to name the decoction or liquid mixture which may produce the intoxication. It is enough if the tiling sold is a liquid mixture which produces or would produce intoxication, and is sold in districts where the local option law is in force. The terms “beverage, liquid mixture, or decoction” are used interchangeably, each synonomous with the other; all describing the same thing. We are of opinion that the indictment was good under the statute, and that the demurrer should have been overruled.

Therefore the judgment is reversed, and the cause remanded, with directioiis to overrule the demurrer, and for further proceedings consistent herewith.