| Ky. Ct. App. | Oct 25, 1918
Opinion of the Court by
Reversing.
The appellant, L. L. Kinser, was indicted, in the Lawrence circuit court, at its June term, 1918, for the crime of bigamy. The indictment substantially alleged that having a living wife, to whom, he was married, in the state of Tennessee, on the 3d day of March, 1898, and whose name at the time, he married her was Lizzie Harvey, did unlawfully and feloniously marry. Ida L. Smith, in Lawrence county, on the 5th day of July, 1913. Upon his trial upon this indictment he was found guilty, by the jury, and his penalty fixed, at confinement in the penitentiary for the period of seven years, and judgment was rendered accordingly. His motion for a new trial having been overruled, he has appealed to this court.
A number of grounds for a reversal of the judgment are relied upon, but it does not appear, that any error prejudicial to his substantial rights was made upon the trial, except in the instructions to the jury, with reference to the imposition of a penalty, in the event, the jury should find him to be guilty, as charged in the indict
“Whoever, being married, the first husband or wife, as the case may be, being alive, shall marry any person, shall be confined in the penitentiary not less than three nor more than nine years. . . .” It is very clear that the crime denounced by this statute, is the act of marrying another person, when the party has a living husband or wife, and is not committed by the party, guilty of a bigamous marriage, thereafter, residing with the other party to the marriage as a husband or as a wife. Such was the construction placed upon the statute in Johnson v. Commonwealth, 86 Ky. 122" court="Ky. Ct. App." date_filed="1887-10-01" href="https://app.midpage.ai/document/johnson-v-commonwealth-7131904?utm_source=webapp" opinion_id="7131904">86 Ky. 122.
The indictment charges and the proof offered upon the trial shows, that appellant committed the crime, for which he is indicted, on the 5th day of July, 1913. At that time, the law regulating the manner of fixing punishment upon such as shall be found guilty of felonies, and defining the jirovince of the jury, in such cases, was embraced by the statute, which was enacted by the General Assembly, on the 7th day of March, 1910, as amended by an act of the Assembly, enacted on March 20, 1912. By the terms of that statute, which remained in force, until in the year, 1914, where an offender, who was indicetd for a felony, which was not punishable by-death or confinement in the penitentiary for life, the question of his guilt, alone, was submitted to the jury,
Section 465, Ky. Stats., provides: “If any penalty, forfeiture, or punishment be mitigated by any provision of the new law, such provision may, by consent of the party affected, be applied to any judgment pronounced after the new law takes effect.” In the instant case, however, it can not be said that the punishment under the present law, in anywise mitigates the punishment, under the law which was in force-when the crime was committed, and besides, the present law could not be applied, without the consent of appellant. In Coleman v. Commonwealth, 160 Ky. 87" court="Ky. Ct. App." date_filed="1914-10-06" href="https://app.midpage.ai/document/coleman-v-commonwealth-7141816?utm_source=webapp" opinion_id="7141816">160 Ky. 87, where an offender, whose offense was committed, when the law of 1910, was in force, but, who was indicted and tried, after that law was repealed, and the one of 1914, relating to the subject, was enacted, this court held, that the one in force at the time, his offense was committed, should be applied, and said: “Confusion and uncertainty will be avoided when the statute in force when the offense is committed is followed, as it should be, unless the punishment is definitely mitigated by the new law and the accused consents, as provided in section 465, that judgment may be pronounced under the new law.” This view has been consistently upheld by this court Gardner, v. Com., 164 Ky. 196" court="Ky. Ct. App." date_filed="1915-04-20" href="https://app.midpage.ai/document/gardner-v-commonwealth-7142494?utm_source=webapp" opinion_id="7142494">164 Ky. 196; Biggs v. Com., 162 Ky. 103" court="Ky. Ct. App." date_filed="1915-01-12" href="https://app.midpage.ai/document/biggs-v-commonwealth-7142160?utm_source=webapp" opinion_id="7142160">162 Ky. 103; Day v. Com., 162
The judgment is therefore reversed and cause remanded for proceedings consistent with this opinion.