167 Ky. 685 | Ky. Ct. App. | 1916
Opinion op the Court by
Dismissing original and cross-appeal.
This is a penal action brought in the name of the Commonwealth of Kentucky against the American Express Company, in the Grayson circuit court. The petition charged the express company, with a violation of Sub-section 2 of section 2569-b, Ky. Statutes, in that county, and sought to recover of the express company the sum of two hundred dollars. The petition was subscribed by the Commonwealth’s attorney for the judicial district, which embraces Grayson county. The express company entered a plea of not guilty, and a trial being had, a verdict of guilty was returned against the company and the amount of the recovery fixed at the sum of one hundred dollars and judgment was rendered accordingly. Grounds, for a new trial were filed and a motion made to that effect, and for reasons not necessary to be stated, the motion was sustained, the verdict and judgment set aside, and a new trial granted to the express company. The attorney for the Commonwealth objected to the order of the court setting aside the verdict and judgment and granting a new trial, and his objection being overruled, he excepted thereto, and prayed an appeal to this court, which was granted. Thereafter, the express company seeking to have the decisions of the ■court below, which were adverse to it, reviewed by this ■court, took a cross-appeal.
The question as to the right of the Commonwealth to maintain the appeal and the right of the express company to prosecute; a cross-appeal is suggested, and those questions will be first considered.
The right of appeal, in all cases, is a right created by statute, and in the absence of a statute conferring the
The offense denounced by sub-section 2, section 2569-b, Ky. Statutes, is a misdemeanor. Appeals to this court from judgments in prosecutions for misdemeanors are provided for and regulated by the provisions of article 2, chapter 1, title 9 of the Criminal Code. Section 347 of that article provides that this court shall have jurisdiction upon appeals in penal actions and prosecutions for misdemeanors, if the judgment be for a fine exceeding fifty dollars, or for imprisonment exceeding thirty days, or in case of acquittal, in cases in which a. fine exceeding fifty dollars or imprisonment exceeding thirty days might have been inflicted. In as much as a. penal action can not be maintained, except for a fine, the section, supra, limits the jurisdiction of this court to appeals, in penal actions, to cases in which a fine exceeding fifty dollars has been assessed, or to a case in which such a fine might have been inflicted. The cases in which imprisonment has been or might be inflicted, necessarily, has reference to prosecutions for misdemeanors, by indictment, information or warrant. The appeals contem
Section 352, Criminal Code, provides that a judgment on a verdict of acquittal of an offense, the punishment ■of which is imprisonment, shall not be reversed, but in such cases an appeal may be taken by the Commonwealth as provided in section 337, Criminal Code* when it is important to the correct and uniform administration of the criminal law. Section 337, supra, is wherein the man, ■ner of taking an appeal by the Commonwealth is provided for in felony cases, and in which, by the provisions ■of section 348, Criminal Code, an appeal may be taken by the Commonwealth from the decisions of the court be'fore a final judgment in the case, for the purpose of having the law of the case determined by this court before the final trial.- In the case of Com. v. Huber, 126 Ky., 456, this court, in construing section 352, supra, held that before final trial, where one was indicted for a misdemeanor, the punishment for which is imprisonment, the Commonwealth might appeal in the manner provided by section 337, supra, before a final judgment in the case, from the decisions of the court made in the case, for the purpose of a uniform and correct administration of the law, as in felony cases. As in felony cases, however, an appeal by the Commonwealth, in a prosecution for a misdemeanor for the purpose of having a certification of the law, in a case wherein the punishment is imprisonment, does not operate to suspend proceedings in the case. Section 352, supra, however, could not authorize an appeal in a penal action by the Commonwealth, before final judgment in the case, as only a fine in such actions can be inflicted.
The Code makers, however, expressly provided for appeals to this court in cases wherein misdemeanors are prosecuted by penal actions, by the enactment of section 355, Criminal Code, which is as follows:
“If the prosecution be by a penal action, the appeal shall be similar in all respects to appeals in civil actions.”
In the case of International Harvester Company v. Com., 161 Ky., 49, this court construing’ section 355, supra, held that in penal actions, that, although, section 348, Criminal Code, provided that upon an appeal in a case of misdemeanor that the record must be lodged in the clerk’s office of this court within sixty days after
It is, therefore, adjudged' that the original and cross-appeal be both dismissed.