Harp v. Commonwealth

139 Ky. 409 | Ky. Ct. App. | 1901

Opinion of the Court by

Judge Hobson

Affirming.

Appellant was fined in the court below $100 under a petition filed against him by the Commonwealth of Kentucky, charging him with selling spirituous liquors in Whitley county, in violation of the local prohibitory law, and a capias pro fine was awarded on the judgment. It is insisted for him that the case cannot he prosecuted by a penal action, and that a capias pro fine cannot be awarded upon the judgment in such an action. Section 11 of the Criminal Code of Practice is as follows: “'A public offense of which the only punishment is a fine, may be prosecuted by a penal action in the name of the Commonwealth- of Kentucky. * * * The proceedings in penal actions are regulated by the Code of Practice in civil actions. ’ ’ Under this statute, it has been held that a fine may be recovered in a civil action, unless the statute provides that the proceeding must be by indictment Com. v. Railroad Co., 80 Ky. 291; Com. v. Sherman, 85 Ky. 686, 4 S. W. 790; Com. v. Railroad Co., 37 S. W. 589.

The local prohibitory act, as to the penalty to be inflicted, the proceedings by which it may be recovered, and the like, has been superseded by the general law as contained in sections 2557, 2558, Ky. St. Stamper v. Com., 42 S. W. 915; Thompson v. Com., 45 S. W. 1039, 46 S. W. 492, 698; White v. Com., 50 S. W. 678. The general law provides simply for a fine of not less than $100, nor more than $200, and this fine may be recovered, under section 11, of the Criminal Code of Practice, by a penal action, under- the principles settled in the cases above cited.

As to the capias pro fine on the judgment, section 301 of the Criminal Code seems conclusive: “Upon judgments for fines, whether rendered on indictments, penal actions or otherwise, writs of execution as provided in the General Statutes may be issued against the person or property of the defendant.” See Long v. Wood, 78 Ky. 392.

Judgment affirmed.