Commonwealth v. Kroger
| Decision Date | 16 December 1938 |
| Citation | 276 Ky. 20 |
| Parties | Commonwealth et al. v. Kroger. |
| Court | United States State Supreme Court — District of Kentucky |
2. Constitutional Law. — Legislative bodies may prescribe that a certain state of facts shall constitute a prima facie, not conclusive, presumption of a principal fact, and thereby cast the burden of overcoming that presumption on the adverse party, even a defendant in a criminal prosecution.
3. Constitutional Law. — The right to prescribe that particular facts shall create a rebuttable prima facie presumption is qualified to the extent that such facts must have a natural and rational evidentiary relation to, and a logical tendency to prove, the principal fact.
4. Automobiles. — An ordinance of the city of Newport, providing that violation of ordinance with a motor vehicle should be prima facie evidence that violation was committed by or with the owner's authority or permission, was within the city's power (Ky. Stats., sec. 3058-25).
5. Automobiles. — In prosecution for violation of city parking ordinance, wherein parties filed stipulation showing that defendant's automobile remained parked on streets longer than allowed by law, and ordinance provided that ownership of automobile should be prima facie evidence of owner's authority or permission to violate ordinance, directing an acquittal was error.
Appeal from Police Court of City of Newport.
CARL H. EBERT, WALTER J. BURKE and WILLIAM J. HERINGER for appellants.
RAY L. MURPHY for appellee.
Reversing.
Section 3063 of Baldwin's 1936 Revision of Carroll's Kentucky Statutes is a part of the charter of cities of the second class in this Commonwealth. It prescribes procedures by which the validity of ordinances of the city may be tested, one provision of which seems to give the right of the city to appeal directly from a judgment of the police court of the city, holding an ordinance invalid, to the Court of Appeals, without passing through the circuit court of the county on appeal to it from the judgment of the city police court. The language of the statute in that respect is somewhat confused; but in the case of City of Paducah v. Ragsdale, 122 Ky. 425 92 S.W. 13, 28 Ky. Law Rep. 1057, we sustained an appeal prosecuted directly to this court from the judgment of the police court of the city of Paducah, declaring invalid an ordinance passed by its council, and which was done because of the interpretation therein made that the confused language in section 3063 supra, authorized the appeal. The correctness of that interpretation is not free from doubt, but, since the question is of comparatively no material importance, we have concluded to accept it without question and to take jurisdiction of this appeal, which is one prosecuted in the same manner.
The city of Newport, in this Commonwealth, is one of the second class. Its board of commissioners enacted ordinance No. 162 with some later amendments, and which relates exclusively to the question of traffic upon the streets of the city, and appears to cover the entire subject. Among other provisions is one in its section 2a-50 making it "unlawful to park any vehicle in the congested area, as described in section 2a-28, longer than two hours at a time," with some exceptions not material to this case. Section 2a-64 of the ordinance says: "The violation of any section or provision of this ordinance by means of a motor vehicle shall be prima facie evidence that such violation was committed by or with the authority or permission of the owner of such vehicle." The penalty for violating section 2a-50 of the ordinance, as is prescribed in its section 2a-65, is a fine of not less than one dollar, nor more than one hundred dollars for each offense.
On November 7, 1938, a policeman of the city observed an automobile parked in an area embraced by section 2a-28. He placed a chalk mark on a tire of one of the wheels and tagged the automobile. After the expiration of two hours he returned to the place and saw the automobile parked in the same position, and which his chalk mark clearly indicated had not been moved in the interim. He took a description of the car, together with its license number, and learned that it belonged to appellee and defendant below, Clement A. Kroger. He thereupon procured a warrant from the city police court, charging defendant with violating the ordinance. At the trial of the charge defendant appeared and entered a plea of not guilty; whereupon the parties filed an agreed stipulation of facts, the substance of which was as hereinbefore stated. Defendant declined to testify and moved that the jury impaneled to try the case be instructed to find him not guilty, which the court sustained with exceptions by counsel for the city, and a verdict and judgment was rendered accordingly, to reverse which this appeal to this court was prosecuted.
The grounds upon which the police judge sustained defendant's motion, as disclosed by the record, were (1) that section 2a-64, making the facts recited therein prima facie proof of a violation of the ordinance by the owner of the guilty vehicle, was and is unconstitutional, invalid and void, and (2) independently of the enacted presumption the stipulated facts were insufficient to create guilty circumstances so as to support a conviction. Our opinion will be devoted to a consideration of those grounds in the order named.
1. It is now well settled that it is competent for legislative bodies to prescribe by their enactments that a certain state of facts shall constitute a presumption of the principal fact, and to thereby cast the burden of overcoming that presumption on the adverse party, even a defendant in a criminal prosecution. See volume 1 of Wharton's Criminal Evidence, 11th Ed. pages 79, 80, sections 69 and 70; 10 R.C.L. 864, section 7; annotations in 51 A.L.R. on page 1179; Smith v. Commonwealth, 196 Ky. 188, 244 S.W. 407; McArthur v. Payne, 201 Ky. 793, 258 S.W. 684; Hughes v. Commonwealth, 242 Ky. 412, 46 S.W. (2d) 783, and numerous cases cited in those opinions and texts, and other cases decided since those we have listed. But it is equally well settled that such enacted presumptions may be given only a prima facie effect and not a conclusive one so as to bar the opposing litigant, or the defendant in a criminal or penal action, from the right to rebut it. It is, therefore, incompetent for legislative bodies to prescribe for a conclusive presumption.
Moreover, the right to prescribe for a rebuttable one is qualified to this extent — that the prescribed facts for creating the prima facie presumption shall have "a natural and rational...
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