89 Ky. 241 | Ky. Ct. App. | 1889
DELIVERED THE OPINION OP THE COURT.
A misdemeanor may be tried in the absence of the accused. (Criminal Code, section 184.) * Any plea, save that of “guilty,” may be entered by his counsel, and his defense conducted without his presence. (Johnson v. Commonwealth, 1 Duvall, 244.) It is only upon an indictment for a felony that an arraignment must be
These statutory provisions show that if, upon the -call of an indictment for a misdemeanor for trial, the defendant neither moves to set aside the indictment nor pleads thereto, he becomes liable to judgment by default. Such a failure operates as a confession of the facts charged, and in such a case final judgment should be entered against him, unless the punishment be not definitely fixed by statute, and it, therefore, becomes necessary to empanel a jury merely to do so.
The provisions of the former Criminal Code upon this ■ subject were substantially similar to those of the present one, and it was decided in the case of the Commonwealth v. Cheek, 1 Duvall, 26, that a judgment could be rendered by default upon an indictment for a misdemeanor.
This indictment is for betting on an election. The punishment fixed by statute is a fine of one hundred dollars. (General Statutes, page 695.) It is a certain sum. It is definitely fixed, and the lower court should, therefore, have sustained the motion of the prosecuting attorney, and, without the intervention of a jury, rendered a judgment for it, instead of sponte sua entering a plea of “not guilty” for the defendant, resulting in his acquittal under a peremptory instruction, as the State declined to offer any evidence. Its motion to
The second section of it provides: “If a part or all of the penalty for a misdemeanor, prescribed in said chapter (twenty-nine) of the General Statutes, be a fine, it shall be in the discretion of a jury fixing the amount of the fine to say in its verdict whether, if the fine and costs are not immediately paid or replevied by the defendant, he shall be put at hard labor in lieu of imprisonment for non-payment of the fine.” * * >>r (General Statutes, page 464.)
The language of this statute appears to confine its operation to cases where the jury fixes the amount of the fine, and it, beyond question, is limited to penalties prescribed by chapter 29, title “Crimes and Punishments,” of the General Statutes. The title of it is “An act to amend chapter ¡89 of General Statutes, entitled ‘Crimes and Punishments.’ ” The body of the act, in both the first and second sections, also expressly limits its application to penalties prescribed by that chapter. Whether this was intentional or through mistake upon the part of the Legislature is not our province to inquire. We must administer the law as we find it.
The penalty for betting on an election is not prescribed by chapter 29, but by chapter 47, of the General Statutes. Many of our statutory penalties are found elsewhere in our statutes than in chapter 29.
It results that the statute above cited is not appli
The judgment is reversed, with directions for a new trial, and further proceedings consistent with this opinion.