Opinion
Decided October 1, 1926.
Appeal from Johnson Circuit Court.
W.J. WARD for appellant.
FRANK E. DAUGHERTY, Attorney General, for appellee.
Reversing.
Appellant was tried and convicted under an indictment charging him with a second violation of the Rash-Gullion Act (1922 Acts, chapter 33) and his punishment fixed at confinement in the penitentiary for one year. The indictment charges him with the unlawful sale of intoxicating liquors on September 8, 1925, and a previous conviction for the same offense at the January term, 1924, of the Johnson circuit court. The indictment under which he was convicted for the first offense was returned on February 2, 1923, and the proof for the Commonwealth fails to disclose when that offense was committed. It might have been committed before March 22, 1922, the date when the Rash-Gullion Act became operative. The instructions given required the jury to believe that it had been committed after that date, but no proof was introduced to authorize the giving of such an instruction. The lower court, therefore, erred in submitting to the jury the question of appellant's guilt on the charge of a second violation of the act. Blanton v. Commonwealth, 210 Ky. 571, 276 S.W. 533.
Judgment reversed and cause remanded for further proceedings consistent herewith.