Opinion
Decided March 4, 1927
Appeal from Pike Circuit Court.
PICKLESIMER STEELE for appellant.
FRANK E. DAUGHERTY, Attorney General, and CHAS. F. CREAL, Assistant Attorney General, for appellee.
Reversing.
This is the second appeal of this case. On his first trial appellant was convicted under a warrant charging him with unlawfully selling, keeping for sale, having in his possession, transporting and giving away spirituous liquors. On the first appeal it was held that, as appellant's demurrer to the indictment was overruled, the court should have required the commonwealth to elect which charge it would prosecute, and the cause was remanded for proceedings consistent with the opinion. Hamilton v. Commonwealth, 204 Ky. 633, 265 S.W. 44.
On the return of the case it was the duty of the circuit court to obey the mandate of this court without suggestion from the accused, and require the commonwealth to elect. Tackett v. Commonwealth, 214 Ky. 680, 283 S.W. 1002. This was not done, and appellant was again convicted. Though we regret the necessity therefor, the only action that this court can take in the circumstances is to reverse the judgment.
No other questions are passed on.
Judgment reversed and cause remanded with directions to require the commonwealth to elect which charge it will prosecute.