201 S.W.2d 890 | Ky. Ct. App. | 1947
Affirming.
Appellee, a resident of Brooksville, Tennessee, a licensed dealer, had purchased 450 cases of beer from a brewery in Cincinnati, where the sale was legal. Some time in May 1946 the beer was being transported between the named points through Kentucky by means of a motor truck and trailer in charge of Burks' driver, Joe Franklin. At some point in Garrard County the truck broke down and Franklin secured one from another owner in order to continue his journey. Before doing so he was arrested and taken before appellant, Judge of the quarterly court.
It developed that Burks had not theretofore procured *618 a $1 transportation permit. The court upon a plea of not guilty heard the case and was about to adjudge a fine, and to enter an order confiscating the tractor, trailer and beer, and vesting title in the Alcoholic Control Board. Before entry of judgment Burks obtained a temporary restraining order from the Judge of the circuit court, who on final hearing issued a writ permanently prohibiting appellant from proceeding in the matter, on the ground that the court was without jurisdiction.
The hearing was had on a stipulation which set forth facts substantially as above stated, with the agreement that the 450 cases of beer were of the value of $1,000, and the truck and trailer combined worth $2,000. This agreed total value presented to the court solely the question of the jurisdiction of the court to try the case, the solution turning mainly on the contention of appellee that the taking of property of the value stated and vesting title in the Control Board was as a matter of law part of the punishment. While appellee, to a considerable extent, briefs the case on merits, we shall as did the chancellor, confine our discussion to the one question.
It is appellant's contention that the forfeiture to be adjudged in case of a finding of guilt is provided for in Sec. 242.3601 KRS, embraced in Ch. 242, KRS, which relates in part to violations of the local option law. This section provides that when a peace officer discovers any person in dry territory in the act of illegally possessing or transporting alcoholic beverages in any vehicle, the officer may arrest the person in charge and seize the property. Upon conviction the court shall order the property sold in the manner provided for sales under execution. KRS
As to claimed jurisdiction of the inferior court, appellant directs us to KRS
Under these provisions appellant contends that it was the intent of the Legislature that the quarterly court *619
should have jurisdiction of forfeitures of contraband seized under provisions of Ch. 243, KRS. But the case is presented to us in such a way as not to involve in its determination of any of the provisions of Ch. 242, KRS. The driver of the truck was arrested and found guilty of a violation of KRS
The record nowhere discloses, nor is there contention that there was a violation of any of the provisions of Ch. 242, KRS. The sole charge against the truck driver was transporting without permit. In order to apply any of the provisions of Ch. 242 to the driver it should have affirmatively appeared that the local option law was being violated. This is an essential corrollary to the rule announced iii Stroud v. Commonwealth,
Since the offense charged was one embraced in the Alcoholic Control law, Ch. 243, KRS, we are to be governed by the chapter which requires a transporter's license before engaging in the act, and as we construe it Sec.
Examination of Chapters 243 and 244, KRS fails to disclose any provision specifically or by implication vesting in the quarterly court jurisdiction concurrent with the circuit court to try the cases arising under either chapter, as does KRS
In Clark v. Commonwealth,
A somewhat analogous case arose under the statute denouncing the offense of carrying a concealed weapon. Smiddy v. Commonwealth,
The chancellor in his opinion appears to have reached a correct conclusion when he wrote: "But in such a proceeding as we have here, personal guilt must first be determined; not only so, but before forfeiture the offender must be either the owner of, or the one using the property unlawfully with the owner's knowledge or consent. KRS
We are of the opinion that the chancellor was correct in holding the inferior court lacked jurisdiction. Judgment affirmed.