118 Ky. 818 | Ky. Ct. App. | 1904
Opinion of the court by
Reversing.
The appellant was jointly indicted with others in the Bourbon circuit court for the offense of maintaining a nuisance, committed by unlawfully causing and permitting persons to assemble on premises in their possession and control, and there engage in betting, winning, and losing money on horse racing, to the injury of the public morals. Appellant was given a separate trial, found guilty by verdict of the jury, and his punishment fixed at a fine of $500. He insists that his conviction was illegal, and that a new trial should have been granted. Upon the trial appellant filed in writing and relied on two grounds of defense; the first being a plea of not guilty, and the second former conviction. To
The plea of former conviction set out with great particularity the following facts: That the city of Paris, which is a municipality of the fourth class, on June 16, 1902,. through its mayor and board of council, and as authorized by section 3490, Ky. St., 1903, duly enacted the following; ordinance: “Be it ordained by the mayor and board, of council that any person who shall within the city of Paris, operate a pool room, shall be fined not less than $2.00, or more than $5.00 for each offense. Each day said pool room is operated shall be deemed a separate offense. By pool room is meant any place where persons are allowed to assemble for the purpose of betting on horse races.” Which ordinance has been in force ever since the 26th day of June,. 1902. That under this ordinance warrants were, issued from the police court of the city of Parisi charging appellant with operating a pool room in Paris 19 days in the month of January, 25 days in the month of February, and 11 days in the month of March; making 55 days altogether. That appellant was arrested upon each of these warrants and arraigned in the police court, and to each offense as charged in the warrants respectively he pleaded guilty, and thereupon, judgments were rendered against him imposing a fine of $5 in each case. That the acts constituting the offense charged in the indictment in this case as to appellant’s suffering a nuisance are the same acts charged against him in the several warrants mentioned, and for which he was tried, convicted, and fined in the police court of the city of Paris; all of which fines he has fully paid. That the Paris police court had exclusive and final jurisdiction of the offenses contained in the warrants andi of the .person of
It is contended by counsel for appellant that the trial court erred, first, in sustaining the demurrer to the plea in bar; second, in peremptorily instructing the jury to find the appellant guilty. The question raised by the first contention has been repeatedly decided by this court. First in the case of Kemper v. Commonwealth, 85 Ky., 219, 8 R., 763, 3 S. W., 159, 7 Am. St. Rep., 593, wherein it was held that where, by the same act, one violates the police regulations of a city and also the criminal laws of the State, the punishment of the offender by the city for the violation of' its ordinances does not bar a prosecution by the State for the violation of its criminal laws, and the fact that the city charter gives the city court exclusive jurisdiction of all offenses committed against the ordinances of the city does not give that court jurisdiction of an offense committed against the laws of the State where the same act is a violation of both the city ordinance and the State law. It is argued, however, that the opinion in Kemper v. Commonwealth, supra has been overthrown by section 168 of the Constitution, since adopted, which provides: “No municipal ordinance shall fix a penalty for a violation thereof at less that that imposed by statute for the same offense. A conviction or acquittal under either shall constitute a bar to another prosecution for the same offense.” We are unable to- see that this section of the’ Constitution affects the question under consideration. The offense of which appellant was convicted in this case is one at the common law, and for that reason an offense against Ihe State, and the punishment inflicted was not a statutory
In view of appellant’s utter indifference to the many fines inflicted upon him by the Paris police court for his persistent violations of the ordinance under which he later sought shelter against the indictment in this case, and his apparent inclination to treat them as a license for his unlawful business, rather than as punishments, we would be inclined to overrule his second contention — that: the court erred in peremptorily directing the jury to find, him guilty — if the law would permit us to do so, but a careful consideration of the matter constrains us to sustain, it. The instruction objected to is as follows: “The court instructs the jury that under the proof they should find the defendant, Desha Lucas, guilty as charged in the indictment, and fix his punishment at a fine in any amount in their discretion, or at confinement in the county jail for any period of time in their discretion, or both so fine' and imprison in their discretion.” The Constitution (section 7, Bill of Rights) provides: “The ancient mode of trial by jury shall be held sacred and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution.” Section 180., Cr. Code
In Ency. Pleading and Practice, volume 6, p. 689, it is said!:: “In a criminal case a verdict of conviction may never be directed. It is for the jury in all such to pass
For the error committed by the court in giving the peremptory instruction, the judgment is reversed, and cause remanded for a new trial, and for further proceedings consistent with the opinion.
Petition for rehearing by appellee overruled.