Opinion
Decided May 21, 1926.
Appeal from Pike Circuit Court.
PICKLESIMER STEELE for appellant.
FRANK E. DAUGHERTY, Attorney General, and CHAS. F. CREAL, Assistant Attorney General, for appellee.
Reversing.
The appellant, Dock Tackett, was the second time convicted in the court below for a violation of the liquor prohibition act, and his punishment fixed at a fine of $300.00 and confinement of 60 days in jail. This is the second appeal prosecuted by him in the case, and as the only material error assigned by him for the reversal asked of the judgment is the same for which we were compelled to reverse the case on the first appeal, we here insert the entire brief opinion, rendered on the first appeal, Tackett v. Commonwealth, 204 Ky. 574, because of its containing the reasons supporting the conclusion at which we have been compelled to arrive on the present appeal:
"Appellant was convicted under an indictment charging the violation of nearly every provision of the prohibition act. The court should have sustained his demurrer to the indictment, or have required the Commonwealth to elect. Neither was done, and the error compels a reversal of the judgment. Caudill v. Comlth., 202 Ky. 730. Judgment reversed and cause remanded for a new trial consistent with this opinion."
Notwithstanding the direction contained in the opinion, supra, and also in the mandate of this court, issued in pursuance thereof, requiring the circuit court to sustain the appellant's demurrer to the indictment, or compel the Commonwealth's attorney to elect for which of the numerous offenses improperly joined in the indictment he would try him, that court did neither of these things, but instead subjected him to a second trial under the same fatally defective indictment. It was unnecessary that a demurrer be again filed to the indictment.
It was the duty of the trial court upon subjecting the appellant to another trial to obey, without suggestion from him, the requirement contained in the opinion and mandate of the appellate court, and this it admittedly did not do. And as its failure to sustain the demurrer to the indictment was one of the grounds urged for a new trial, and the verdict returned by the jury merely pronounced the appellant guilty, without naming the offense of which he was guilty, it cannot be told from anything appearing in the record of which of the many offenses charged in the indictment he was convicted.
As, because of the error referred to, the judgment must be reversed, it is deemed unnecessary to consider other grounds urged for its reversal. Wherefore, the judgment is reversed.