
    Case 33 — INDICTMENT FOR SELLING LIQUOR —
    Oct. 26.
    Commonwealth v. Cope.
    APPEAL 3PKOM. GRAVES CIRCUIT COURT.
    Criminal Law — Local Option — Indictment.—An indictment for violating the local option law must state that the judge of the ■county court madean order on his order hook directing the election to he held at a certain time; that the election was duly held at ■that time; that a majority of the legal votes cast at-the election were given against the sale; that the canvassing board found this to be a fact and certified that fact to the county court; that the judge thereof had the same spread on the order book of his court; and -that the offense charged was committed after the ■entry io'f the certificate on the -order book. And the allegation in the indictment that the canvassing board found it to be a fact that a majority of the legal votes oast- at the election were given against the sale, can. not supply the omitted substantive -averment that a majority of the legal votes cast at the election were -given against the -sale.
    H. J. MOORMAN, commonwealth’s attorney, first circuit court district, for appellant. (W. S. TAYLOR, attorney-general, of counsel.)
    On the sufficiency of the indictment: Ky. Stats., oh. 81; Act ■of May 26, 1874,- ’87 ed. Gen. Stat., p. 470; Bouvier’s Law Diot.; 19 Am. & Eng. Ency. of Law, 83; Newman’s PI. & Pr., p. 278-9; Hodge v. Com., Mans. opin. of May 23, 1882; Crim. Code, sec. 122.
    SA'ML. H. CROSSLAND for appellee.
    On the sufficiency -of the indictment: .Shelton v. Com., 35 S. W., 128; Green v. Same, 32 S. W. R., 169; Pippin v. Same, 40 S. W. R., 252.
   JUDGE HOBSON

delivered the opinion of the court.

Appellee was indicted for selling spirituous liquors in violation of tbe general local option law (Kentucky Statutes, sections 2554-2568). He demurred to tbe indictment. The demurrer was overruled and the case submitted to a jury, who found Mm guilty, and fixed bis fine at $100. The appellee entered a motion in arrest of judgment, which was overruled. He then entered a motion for a new trial, which the court sustained, and set aside the order overruling the demurrer to the indictment, sustained the demurrer, and dismissed the prosecution. The Commonwealth appeals, insisting that the indictment was sufficient.

The charge is made in the indictment in these words: “The said Hub Cope, in the said county of Graves, on the 27th day of June, 1898, and before the finding of this indictment did sell, loan, and barter spirituous, vinous, and malt liquors, to-wit, whisky, brandy, wine, gin, ale, and beer, by retail, within the corporate limits of the city of Mayfield, Kentucky, to J. W. Baldree, after an election duly held therein on the 26th day of September, 1896, to take the sense of the legal voters of said city on the question whether or not spirituous, vinous, or malt liquors should be sold, loaned, or bartered therein, and the board duly authorized to compare and count said vote had duly compared and counted same, and found a majority of all the votes cast at said election were against the sale, loan, or barter of said liquors in said city, and had duly certb fied this fact to the county court of Graves county, and said certificate had. been duly recorded on the order book of said court, as provided by law; against the peace and dignity of the Commonwealth of Kentucky.”

It is insisted that this indictment is sufficient, under section 2556 of the Kentucky Statutes, which is as follows:

“If it shall be found that a majority of the legal votes cast at any election herein provided for were given for or against the sale, barter or loan of spirituous, vinous or malt liquors in the said county, city, town, district, or precinct, it shall be the duty of the canvassing board to certify that fact, which certificate shall be delivered to the clerk of the county court and by him safely kept until the next regular term of the county court, at which term the judge thereof shall have the same spread on the order book of his court, and said entry of' the certificate in the order book, or a- certified copy thereof, shall be prima facie evidence in any or all proceedings under this act.”

It is said the Commonwealth need only make out in the indictment a prima fade case, and that under this section the facts charged in the indictment are sufficient for this purpose.

By section 2557 it is provided that after' the entry of the certificate in the order book of the county court, if the vote was against the sale, it shall be unlawful for anybody to sell any spirituous'liquors in the territory named, and that any person so selling shall be fined not less than $100 nor more than $200 for each offense. The statute is not operative until the vote is given against the sale, and an indictment can not be good which does not charge this fact. It is only charged in this case that the board authorized to count the votes found a majority of all the votes cast at said election were against the sale, and certified this fact to' the county court. The averment that an officer certified to a fact is not a sufficient averment that the fact existed.

“Thus, in an action of trover for ten pieces of money, the defendant pleaded that there was a wager between the plaintiff and one C. concerning the quantity of yards of velvet in a cloak, and the plaintiff and C. each delivered into the defendant’s hands ten pieces of money, to be delivered -to O. if there were ten yards of velvet in the cloak, and, if not, to the plaintiff; and proceeded to allege that upon measuring-of- the cloak it was found that there were ten yards of velvet therein, whereupon the defendant delivered tlie pieces of money to C. Upon demurrer, ‘Gawdy held the plea to be good enough, for the measuring thereof is the fittest way for the trying it; and when it is so found by the measuring he had good cause to deliver them out of his hand to him who had won the wager.’ But Fenner and Popham held that the plea was not good, ‘for it may be that the measuring was false, and therefore he ought to have averred in fact that there were ten yards, and that it was so found upon the measuring thereof.’ ” (Stephens on Pleading, p. 384.)

So, in Newman on Pleading, p. 256, it is said:

“Facts, and not the evidence of them, are still required to be «stated in a pleading at law; as, where the essential fact to be averred was that a certain person was of unsound mind, it will not be sufficient to allege that the person had been judicially found .to be of unsound mind.”

As to the sufficiency of such an allegation, the same principles apply in criminal as in civil cases-. 1 Bishop on Criminal Prosecution, 325.

In pleading a judgment or a determination of or a proceeding before a court or officer of special jurisdiction the pleader may, in an indictment, allege the facts as at common law necessary to show that all was regular, or he may, in his discretion, simply state that the judgment or determination was given or «made, or the proceedings had, and then prove on the trial the fact showing the regularity of the proceedings. (Criminal Code of Practice, section 131.) If he adopts the first method, he must, at his peril, not allege a state of facts under which his proceedings would not be regular. Thus, in a number of cases for violation of the general local option law, the indictments were held bad. because the facts alleged showed the invalidity of the proceedings. (Com. v. Green, 17 Ky. L. R., 579, [32 S. W., 169]; Cress v. Com., 18 Ky. L. R., 63, [37 S. W., 493]; Com. v. Pippin, 19 Ky. L. R., 270, [40 S. W., 252]; Com. v. Shelton, 99 Ky., 120, [35 S. W., 128].)

In a number of other cases this court has expressly or tacitly sustained indictment^ where the pleader stood upon the general averments sanctioned by the Code and relied upon the prima facie case authorized by the statute. (Taylor v. Com., 19 Ky. L. R., 351, [40 S. W., 383]; Griffin v. Com., 7 Ky. Law Rep., 300; Hodge v. Com., (MS. opinion; May 23, 1882), 4 Ky. Law Rep., 341; Evans v. Com., 10 Ky. Law Rep., 681; Com. v. Stamper, 8 Ky. Law Rep., 787.) If the pleader chooses to follow this mode of allegation, he must strictly pursue the statute, and not omit any fact which is essential to a prima facie case.

An election by the people is of no force unless authorized by law. The statute does not fix the time for holding such an election. It is to be held at the time ordered by the county court. To make out a prima facie case under the statute, it should be charged that the judge of the county court made an order on his order book directing the election to be held at a certain time; that the election was duly held at that time; that a majority of the "legal votes cast at the election were given against the sale; that the canvassing board found this to be a fact, and certified that fact to the county court; that the judge thereof had the same spread on the order book of his court; and that the offense charged was committed after the entry of the certificate on the order book.

The indictment in this case does not show any authority for holding the election, nor does it state with sufficient certainty how the vote was given, or that the county judge had the certificate spread upon the order book of Ms court. With these averments it would be sufficient, but without them it does not show prima facie that appellee can be punished under the act referred to.

Judgment affirmed.  