Dressman v. Commonwealth
| Decision Date | 03 October 1924 |
| Citation | 204 Ky. 668 |
| Parties | Dressman v. Commonwealth, for use, etc. |
| Court | Kentucky Court of Appeals |
Appeal from Letcher Circuit Court.
HARRY L. MOORE for appellant.
FRANK E. DAUGHERTY, Attorney General, and CHAS. F. CREAL, Assistant Attorney General, for appellee.
Appellant was charged in the Neon police court with unlawful possession of intoxicating liquor, and upon his trial therein was found guilty and the minimum penalty of $100.00 and thirty days in jail adjudged against him.
He prosecuted an appeal from that judgment to the Letcher circuit court and took all necessary steps to perfect that appeal, and the same was docketed in that court.
Upon the calling of the case for trial in that court, but before the jury was impaneled and sworn, he entered his motion to dismiss the appeal which he had prosecuted, and without consent or objection by the attorney for the Commonwealth the court overruled his motion, proceeded with the trial, and he was again found guilty and his punishment fixed at a fine of $300.00 and sixty days in jail.
This appeal from the latter judgment raises the single question whether appellant in the circuit court had the right to dismiss the appeal prosecuted by him to that court from the police court.
Appeals in misdemeanor cases from inferior to circuit courts are in the latter tried de novo. (Section 366, Criminal Code.) In the circuit court the trial proceeds in all respects as if the prosecution had originated there; evidence must be introduced, the defendant must be shown by competent evidence to be guilty before he may convicted, and he has the same right, and no more, he would have had if the prosecution had been originated in that court. The circuit court on such appeals is therefore not a court of purely appellate jurisdiction, but under the provisions of the Code referred to is, notwithstanding its statutory jurisdiction of the appeal, only a trial court. Its authority is not limited to passing upon any alleged errors committed by the inferior court, but it in all respects had charge of the case as if no trial had previously taken place.
It is apparent, therefore, that a different question is presented where an appeal when prosecuted from an inferior to the circuit court stands for trial in the latter court just as if no trial had ever taken place, and an appeal taken from a trial court to a court of purely appellate jurisdiction where there could be inquired into and passed upon only errors of the trial court, and where there could be no trial anew.
The general rule appears to be, both in criminal and civil cases, that where one prosecutes his appeal from a trial court to a court of purely appellate jurisdiction, he as a matter of right may dismiss his appeal in the appellate tribunal unless by so doing the rights of the appellee are thereby affected. The reason of this is that he may at any time waive his right of appeal and elect to accept the judgment of the trial court as final.
But where he prosecutes an appeal from one inferior co...
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