423 S.W.2d 523 | Ky. Ct. App. | 1968
Shelby “Cotton” Embry was tried before a jury in the Muhlenberg Quarterly Court on a charge of selling alcoholic beverages in local option territory as denounced by KRS 242.230. The jury returned a verdict in that proceeding as follows: “We find the defendant guilty and fix his punishment at fine of none and thirty days in jail.” The verdict was duly signed by the foreman of the jury.
KRS 242.990(1) provides that the penalty for a violation of KRS 242.230 upon a first conviction shall be fixed at a fine of “ * * * not less than twenty nor more than one hundred dollars and, [imprisonment] in the county jail for not less than thirty nor more than sixty days.” Conceiving that the judgment of the Muhlen-berg Quarterly Court was void because it was based upon a verdict fixing a penalty other than that authorized by the statute, Embry filed his “Petition for Writ of Ha-beas Corpus Ad Subjiciendum” in the Muhl-enberg Circuit Court. After a hearing on that petition, an order was entered by the trial court denying the relief sought and dismissing the petition. The present proceeding is an attempted appeal from the circuit court’s order, and a motion to deny the motion for appeal for procedural defects has been passed to the merits. In treating of appeals in proceedings for ha-beas corpus, KRS 419.130(1) provides in pertinent part:
“Any party to a hearing on a writ may appeal to the Court of Appeals by filing with the clerk of the court, within thirty days after the entry of the judgment, the original record and a transcript of the evidence, together with a notice of appeal, which notice shall be served on the other parties at least two days before the appeal is filed.”
For the reasons stated, the motion for appeal is overruled.