Opinion
May 1, 1959.
Appeal from the Circuit Court, Breathitt County, Ervine R. Turner, J.
Marcus Mann, Jackson, for appellant.
Jo M. Ferguson, Atty. Gen., Wm. F. Simpson, Asst. Atty. Gen., for appellee.
Appellant, Tim Carpenter, was convicted in the Breathitt Circuit Court of the offense of possessing alcoholic beverages for the purpose of sale in local option territory. The jury imposed a fine of $100 and sixty days in jail. From the judgment on the verdict and order overruling his motion and grounds for a new trial the appellant has moved this court to grant him an appeal, and urges as grounds for reversal; (1) that Instruction No. 1 was erroneous, and (2) that the court erred in overruling his plea of former conviction.
Instruction No. 1 reads as follows:
"If you believe from the evidence beyond a reasonable doubt that in the county and within twelve months before the finding of this indictment the defendant Tim Carpenter has been proved guilty of illegally possession liquor in Breathitt County and in local option territory you will find him guilty * * *."
The Commonwealth concedes in its brief that this instruction was erroneous, because it did not submit the charge alleged in the indictment. Cornett v. Com., Ky., 251 S.W.2d 466; Hunter v. Com., Ky., 239 S.W.2d 993. It further admits that the offense of possessing alcoholic beverages for the purpose of sale in local option territory, as charged in the indictment, is an entirely different offense from "illegal possession" mentioned in the instruction, and that mere possession of liquor in local option territory is not a criminal offense under the local option law. Bray v. Com., 302 Ky. 846, 196 S.W.2d 725; Padgett v. Com., Ky., 299 S.W.2d 255. The instruction was erroneous and did not submit any offense to the jury.
Under the evidence the court properly overruled appellant's plea of former conviction in a justice of the peace court.
The motion for an appeal is sustained and the judgment is reversed, with direction to grant a new trial.