161 Ky. 49 | Ky. Ct. App. | 1914
Lead Opinion
OpinioN op the Court by
— Reversing.
Each of the above appeals involving the same questions, they will be disposed of in one opinion. The proceedings in each case were by a penal action filed in the Circuit Court by the Commonwealth of Kentucky v. The International Harvester Company of America. Judgment was entered in favor of the Commonwealth in the Circuit Court. The defendant appeals, and did not file the transcript in this court within sixty days after the judgment was rendered; but did file the transcript and take the appeal within two years after the judgment was rendered. A motion has been made by the Commonwealth to dismiss the appeals on the ground that they were not taken in time. Sections 347, 348 and 355 of the Criminal Code of Practice are as follows:
“The Court of Appeals shall have appellate jurisdiction in penal actions and prosecutions for misdemeanors, in the following cases only, viz: If the judgment be for a fine exceeding, fifty dollars, or for imprisonment exceeding thirty days; or, if the judgment be for the defendant, in cases in which a fine exceeding fifty dollars or confinement exceeding thirty days, might have been inflicted.” (Sec. 347.)
“The appeal must be prayed during the term at which the judgment is rendered, and shall be granted upon the condition that the record be lodged in the clerk’s office of the Court of Appeals within sixty days after the judgment.” (Sec. 348.)
“If the prosecution be by a penal action, the appeal shall be similar in all respects to appeals in civil ac- • tions.” (Sec. 355.)
“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, or in the name of an individual or corporation, where the whole fine is given to such individual or corporation. The proceedings in penal actions are regulated by the Code of Practice in civil actions.” (Sec. 8.)
“The Court of Appeals shall have appellate jurisdiction in prosecutions for misdemeanors in the following cases only: Where the judgment is for a fine exceeding one hundred dollars, or for imprisonment exceeding fifty days, and where the judgment is for the defendant in a case where a fine exceeding one hundred dollars, or confinement exceeding fifty days, could have been inflicted.” (Sec. 342.)
“The appeal shall be prayed during the term at which the judgment was rendered, and shall be granted upon the condition that the record is lodged in the clerk’s office of the Court of Appeals within sixty days after the judgment.” (Sec. 343.)
“Where the prosecution is by a penal action, the appeal shall be similar in all respects to appeals in civil actions.” (Sec. 351.)
The difficulty arises in this way: Section 342 of the Code of 1851 did not apply to penal actions and neither did section 343; but on February 9,1858, this statute was • passed amending section 342:
“That the Court of Appeals shall have jurisdiction over the judgments in penal actions and prosecutions where the fine is $50.00 or over that amount.”
When the revisers of the Code of 1876 came to section .342 they combined the amendment and the original section, and thus made that section apply to appeals in penal actions. This was done merely to fix the amount necessary for jurisdiction, and when they had this matter alone in mind it is not to be concluded that they had in mind making a change in the manner in which appeals in penal actions should be taken, such appeals being regulated by other sections of the code which they brought over in this revision unchanged. In addition to this, to hold otherwise would not be to give proper effect to the express language of section 355, for it provides that appeals in penal actions shall be similar in all respects to appeals in civil actions. Two of the most important things in regard to appeals are the time and manner of taking them. After the appeal is taken and the transcript is filed in this court there is little substantial difference between the proceedings in civil and
On the merits of the cases the law and the facts are the same as in the case of the International Harvester Company of America v. Kentucky, advance opinions U. S. Supreme Court, July 15, 1914, page 853, and under the principles laid down in that case the judgment in each of the above cases must be reversed and the actions dismissed.
Under the Civil Code a default judgment will be reversed on appeal where the petition upon which it was rendered is insufficient to sustain a judgment. In a criminal proceeding a judgment imposing a fine for a misdemeanor will likewise be reversed where the indictment does not state facts constituting a public offense. These are familiar rules and have often been announced by us. The petitions in these eases fail to state facts constituting a cause of action under the opinion of the U. S. Supreme Court above referred to,- and therefore the judgments upon the petitions cannot be sustained, although the defendant failed to appear and suffered judgment to go by default.
Judgment reversed in each case and cause remanded with directions to the circuit court to dismiss the proceedings.
Dissenting Opinion
Dissenting Opinion by
In none of these cases was the record filed in this court within sixty days. For that reason I dissent from so much of the opinion as refuses to dismiss the appeal.
The sections of the code referred to in the opinion are the same as contained in the Bullitt and Feland code of 1876, and from that day to this there has been no amendment changing or altering either of them. The Bullitt and Feland code was adopted as the law of the state by an act of the Legislature. The act is copied into that code and is as follows:
*54 “Be it enacted by the General Assembly of the Commonwealth of Kentucky:
‘ ‘ Sec. 1. That the provisions of this act shall regulate the proceeding’s in all prosecutions and penal actions in all the courts of this Commonwealth, from and after the first day of January, 1877, and shall be known as ‘the Code of Practice in Criminal Cases.’
“Sec. 2. Be it further enacted, That all prosecutions or proceedings in criminal or penal eases, which shall be commenced before the first day of January, 1877, and which, by the existing laws, would be valid, shall not be rendered invalid by this act, but may be prosecuted to their conclusion, and enforced according to the existing laws, as if this act had not been passed.
“Section 3.' Be it further enacted, That all laws coming within the purview of this act shall become repealed when this act goes into effect, except as provided in the preceding section.”
By express terms this ■ act not only regulates proceedings in all prosecutions -and penal actions in all courts of this Commonwealth, but repeals all other laws coming within the .purview, that is, in conflict with the act, -are repealed. Therefore, I am of the opinion that the history of legislation, practice and procedure up to the time of the adoption of that code is immaterial, and if a study of that history leads one to the conclusion that the law was different then from the way it is now stated in the Code, or that the compilers of the 1876 Code did not intend .to make a. change in the old practice, then that conclusion should not be permitted to operate as an amendment or nullification of the Code as we now have it, and which was adopted by express legislation, repealing at the same time everything in conflict with it. All these • sections should be read together as a part of a general and uniform system, and the meaning of each should be determined in connection with the others on the same subject. If two sections are in apparent conflict they should be construed, if reasonably possible, as to allow both to stand, and to give force and effect to each. 36 Cyc., 1146.
Criminal Code, section 347, gives this court appellate jurisdiction in penal actions and prosecutions for misdemeanors in certain eases only, and one of these conditions is if the judgment be for a fine exceeding $50. Section 348 of the code makes a further condition upon our jurisdiction, and that is that the record be lodged
For these reasons, I dissent from the opinion of the court.