Eutsler v. Commonwealth

• Decision Date: 23 May 1913
• Citation: 154 Ky. 35,156 S.W. 855
• Parties: EUTSLER v. COMMONWEALTH (three cases).
• Court: Kentucky Court of Appeals

156 S.W. 855

154 Ky. 35

EUTSLER v. COMMONWEALTH (three cases).

Court of Appeals of Kentucky.

May 23, 1913

Appeal from Circuit Court, Harlan County.

George W. Eutsler was convicted on three indictments charging unlawful sale of intoxicating liquors in local option territory, and he appeals. Dismissed.

W. F Hall, F. F. Acree, and Zeb. A. Stewart, all of Harlan, for appellant.

James Garnett, Atty. Gen., and O. S. Hogan, Asst. Atty. Gen., for the Commonwealth.

SETTLE J.

The appellant, George W. Eutsler, was tried and convicted in the Harlan circuit court under each of three indictments charging him with the offense of selling spirituous liquors in territory where local option was in force. In one of the cases the punishment inflicted by the verdict of the jury and judgment of the court was a fine of $100 and 10 days' imprisonment; in each of the two other cases a fine of $80 and 20 days' imprisonment.

Appellant filed in each case a motion and grounds for a new trial, but the motions being overruled, he prayed and was granted in each case an appeal to this court, following which the several judgments were superseded by the execution on his part of the required appeal bonds. Counsel for the commonwealth have entered a motion to dismiss each of the appeals on the ground that as the judgments, save $14 of the third one, have been paid by the appellant since the appeals were taken, this court is without jurisdiction to entertain or decide them. Section 347, Criminal Code, provides "The Court of Appeals shall have appellate jurisdiction in penal actions and prosecutions for misdemeanors, in the following cases only, viz.: If the judgment be for a fine exceeding fifty dollars, or for imprisonment exceeding thirty days; or, if the judgment be for the defendant, in cases in which a fine exceeding fifty dollars, or confinement exceeding thirty days, might have been inflicted."

We have frequently held in civil actions that a defendant against whom a recovery for money is had does not, by replevying or paying the judgment, waive his right to prosecute an appeal. Kellar v. Williams, 10 Bush, 216; N.C. & St. L Ry. Co. v. Bean, 128 Ky. 758, 109 S.W. 323, 33 Ky. Law Rep. 114, 129 Am. St. Rep. 333; Pike, Morgan & Co. v Wathen, 78 S.W. 137, 25 Ky. Law Rep. 1264; Shannon v. Padgett, 71 S.W. 487, 24 Ky. Law Rep. 1281. The reason for so holding is thus well stated in Kellar v. Williams, supra: "While the case was pending, no act of the debtor incidental to such a proceeding to enable him to prevent his property from being sold to satisfy what he supposed to be an erroneous judgment can be deemed to be a waiver of his right to an appeal. He might have satisfied the judgment by an actual payment of the money; and, if reversed, the creditor by rule could have been required to refund it." The same conclusion is more elaborately expressed in the opinion in N.C. & St. L. Ry. Co. v. Bean, supra, as follows: "A defendant in a judgment may prosecute an appeal from it, although he may have paid it. *** The appeal does not affect the judgment until it is reversed. Hence, if the appellant was unable to give the supersedeas bond required by the Code in order to obtain a stay of the execution pending the appeal, he would be under the necessity of suffering his property to be seized and sold by the sheriff, with added costs and possible sacrifices. Yet in that event his right of appeal would not be affected, as otherwise the right of appeal would be valuable only to the rich, who could make the supersedeas bond, and to the very poor, who were execution proof. What one may be compelled to do he...