Commonwealth v. Jones

• Decision Date: 07 April 1874
• Citation: 73 Ky. 725
• Parties: Commonwealth v. Jones.
• Court: Kentucky Court of Appeals

73 Ky. 725

Commonwealth v. Jones.

Court of Appeals of Kentucky.

April 7, 1874.

APPEAL FROM FRANKLIN CRIMINAL COURT.

COPYRIGHT MATERIAL OMITTED

M. C. JOHNSON, For Commonwealth.

ISAAC CALDWELL, THOS. W. GIBSON, For Appellee.

JUDGE LINDSAY DELIVERED THE OPINION OF THE COURT.

Thomas C. Jones was indicted in the Franklin Criminal Court for usurping the office of clerk of the Court of Appeals. The indictment was founded upon the provisions of section 1, article 25, chapter 29, of the General Statutes, which is as follows, viz.: "If any person shall usurp any office established by the constitution or laws of this commonwealth, or shall knowingly hold or pretend to exercise such office after his election or appointment thereto shall have been declared by a court of competent jurisdiction illegal or void, or after his term of office has constitutionally and legally expired, he shall be guilty of a misdemeanor, and fined in a sum not less than five hundred nor more than fifteen hundred dollars." The indictment contains two counts.

The first count charges that Jones, in June, 1869, since the adoption of the present constitution of Kentucky, accepted a challenge, sent to him by J. Hale, to fight a duel with deadly weapons, both parties at the time being citizens of Kentucky; that said acceptance disqualified Jones from holding office in Kentucky; and that he afterward did usurp and hold the office of clerk of the Court of Appeals in Franklin County.

The second count charges that Jones accepted the said challenge, and that he continued to hold and exercise the office of clerk of the Court of Appeals after his election had been declared illegal by a contesting board, duly and legally organized to try the question. It sets out in detail that said board, after due trial, found and decided that Jones did accept a challenge sent him by Hale, a citizen of Kentucky; that the acceptance was after the adoption of the present constitution; and that it took place in Daviess County. It is further averred that said board was a court of competent jurisdiction to inquire into and determine all these questions, and to declare the election under which Jones claims the office to be illegal and void; and that in the exercise of such jurisdiction and power it did adjudge that Jones, by reason of the facts so found, was ineligible to the office; that his election was illegal and void, and that the office was vacant; and that, notwithstanding said judgment, Jones is knowingly and willfully holding and exercising the said office of clerk of the Court of Appeals.

To this indictment a demurrer was sustained. The prosecution was thereupon dismissed, and from the judgment of dismission the commonwealth prosecutes this appeal.

Section 1, article 8, of the constitution provides that "members of the General Assembly, and all officers before they enter upon the execution of the duties of their respective offices, and all members of the bar before they enter upon the practice of their profession, shall take the following oath or affirmation: "I do solemnly swear (or affirm, as the case may be) that I will support the constitution of the United States and the constitution of this state, and be faithful and true to the commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my abilities, the office of ____ according to law; and I do further solemnly swear (or affirm) that since the adoption of the present constitution I, being a citizen of this state, have not fought a duel with deadly weapons, within this state nor out of it, with a citizen of this state; nor have I sent or accepted a challenge to fight a duel with deadly weapons with a citizen of this state; nor have I acted as second in carrying a challenge, or aided or assisted any person thus offending, so help me God."

Sections 20 and 21 of the same article provide: 20. "Any person who shall after the adoption of this constitution, either directly or indirectly, give, accept, or knowingly carry a challenge to any person or persons to fight in single combat with a citizen of this state with any deadly weapon, either in or out of this state, shall be deprived of the right to hold any office of honor or profit in this commonwealth, and shall be punished otherwise in such manner as the General Assembly may prescribe by law." 21. "The governor shall have power, after five years from the time of the offense, to pardon all persons who shall have in any wise participated in a duel, either as principals, seconds, or otherwise, and to restore him or them to all the rights, privileges, and immunities to which he or they were entitled before such participation; and upon the presentation of such pardon the oath prescribed in the first section of this article shall be varied to suit the case."

The indictment shows that Jones was elected clerk of the Court of Appeals at the August election, 1874; that the fact of his election was duly certified by the board whose duty it was to compare the polls and canvass the election returns; that he presented his certificate of election to the Court of Appeals, and that he was inducted into office by being "qualified and sworn as is prescribed by law;" and that after all this the contesting board rendered the judgment hereinbefore set out. It fails to show that Jones had ever been indicted, tried, and convicted of the offense of accepting a challenge to fight a duel with deadly weapons with a citizen of Kentucky, unless the finding and judgment of the contesting board can be treated as a conviction.

In support of the first count in the indictment it is argued that the ineligibility or disqualification for office prescribed by the constitution arises immediately out of the commission of either of the forbidden acts; that it attaches at once, and is in no wise dependent upon a judicial ascertainment of the existence of the disqualifying fact. If this be the true construction of section 20, article 8, of the constitution, it is self-executing. It defines in apt language a public offense, and prescribes a punishment therefor, which punishment is the deprivation of the offender "of the right to hold any office of honor or profit in this commonwealth." It confers upon the General Assembly the power to inflict other punishment, but does not leave the infliction of the punishment prescribed by the constitution to depend upon legislative action.

That the deprivation of the right to hold office is a punishment does not, in our opinion, admit of serious question.

"The deprivation of any rights, civil or political, previously enjoyed may be punishment, the circumstances attending and the causes of the deprivation determining this fact. Disqualification from the pursuits of a lawful avocation or from positions of trust, or from the privilege of appearing in the courts or acting as an executor, administrator, or guardian, may also, and often has been, imposed as punishment The theory upon which our political institutions rest is that all men have certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions are alike open to every one, and that in the protection of these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment, and can in no otherwise be defended." (4 Wallace, 320-22.)

In re Dorsey (7 Porter, Ala., 293) Justice Goldthwaite says, "I have omitted any argument to show that disqualification from office or from the pursuit of a lawful avocation is a punishment; that it is so is too evident to require any illustration. Indeed it may be questioned whether any ingenuity could devise any penalty which would operate more forcibly on society." To the same effect is the case of Barker v. The People (3 Cowen, 686.)

Deprivation of the right to hold office was a common-law punishment. (4 Blackstone's Commentaries, 44.) It was one of the punishments prescribed by the legislature of this state for the offense of dueling as early as the year 1799. (1 Stat. Laws, 579.)

In framing the constitution the convention did not propose to create a new offense nor to prescribe a new mode of punishment. The offense and the character of punishment prescribed had existed in Kentucky for more than fifty years before they received the recognition and approbation of the convention that framed and the people who ratified and adopted our present constitution. That dueling was understood to be a public offense, and the deprivation of the right to hold office a punishment, is manifest from the provisions of section 21, heretofore quoted in full. It is therein termed an offense, and the governor is authorized after a given time to pardon it, and to restore to the party who has offended all the rights, privileges, and immunities to which he was entitled before participating in the forbidden act. It was argued by counsel that the pardon thus provided for relieves against the penalties provided by the statute alone, and that the constitutional disqualification or penalty must be relieved against by an express restoration of the forfeited rights, privileges, and immunities. We do not so construe the section. The statutory penalties might be relieved against under the general power of the governor to grant reprieves and pardons. The pardon he is here authorized to grant is intended to, and does of itself, restore the forfeited rights, privileges, and immunities. Hence the concluding sentence or clause, "And upon presentation of such pardon the oath prescribed in the first section of this article shall be varied to suit the case."

The commonwealth further insists that if the deprivation of the right to hold office be a punishment, it is not a criminal but a political punishment, inflicted because of the duelist having by his voluntary act unfitted...