Gibson v. Commonwealth

Citation209 Ky. 101,272 S.W. 43
PartiesGIBSON v. COMMONWEALTH.
Decision Date15 May 1925
CourtCourt of Appeals of Kentucky

Appeal from Circuit Court, Fayette County.

On petition for rehearing. Petition sustained, judgment reversed, and cause remanded.

For former opinion, see 204 Ky. 748, 265 S.W. 339.

Owen S Lee and Neil G. Sullivan, both of Lexington, for appellant.

Frank E. Daugherty, Atty. Gen., and Gardner K. Byers, Asst. Atty Gen., for the Commonwealth.

DRURY C.

The former opinion in this case will be found in 204 Ky. 748, 265 S.W. 339. This man was tried and convicted under an act of the General Assembly of Kentucky, which is chapter 97, Acts of 1922, p. 253. In his brief, appellant's counsel insisted that this act is unconstitutional, and now by a petition for rehearing he has renewed the attack upon different grounds. This act originated in the Senate as Senate Bill 88, and as introduced and first passed by the Senate it read:

"An act to amend section 1159, Kentucky Statutes, Carroll's 1915 Edition, relating to burglary and robbery.

That section 1159, Kentucky Statutes, Carroll's 1915 Edition be amended and re-enacted, so that when so amended and re-enacted said section shall read as follows:

Every person guilty of robbery or burglary shall be punished with death, or confinement in the penitentiary for life, in the discretion of the jury."

When this bill reached the House, it was amended by striking out the words, "robbery or" and adding:

"This act shall not affect the statute or law of the state denouncing any penalty for robbery not accompanied by an act of burglary."

After this amendment, the bill passed the House, repassed the Senate, and was approved by the Governor. Omitting the title, the act in question as passed and approved consists of two sentences, and is:

"Every person guilty of burglary shall be punished with death, or confinement in the penitentiary for life, in the discretion of the jury.

This act shall not affect the statute or law of the state denouncing any penalty for robbery not accompanied by an act of burglary."

The addition of this second sentence has been the cause of much confusion. It has not been an easy matter to ascertain just what the Legislature sought to accomplish by adding it. If by adding this sentence the Legislature sought to prevent simple robbery being made a capital offense, then these words were unnecessary, and are mere surplusage, and they can be disregarded, and the remainder of the act held constitutional. If, by the addition of this last sentence, the Legislature sought to retain the then existing law against robbery, this last sentence was unconstitutional because by section 51 of the Constitution it is expressly provided:

"No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length."

Thus we have two possible interpretations of this last sentence. To adopt the first interpretation would make the law constitutional; to adopt the second would make it unconstitutional. It is an elementary principle that where the validity of a statute is assailed, and there are two possible interpretations, by one of which the statute would be constitutional, and by the other it would not, it is the duty of the court to adopt that construction which would uphold it. Accordingly, we adopted the first interpretation in our original opinion, and held this act constitutional. We are now convinced that that was erroneous for these reasons Robbery has ever been a crime, and there has never been found a human society, no matter how crude, that did not, by its laws and customs, denounce it as a crime, and seek to punish the robber. Burglary is an old crime; but men robbed each other of their goods...

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23 cases
  • People v. Lowell
    • United States
    • Supreme Court of Michigan
    • 7 avril 1930
    ......Ed: 1043;State v. McDonald, 20 Minn. 136 (Gil. 119); State v. Smith, 56 Or. 21, 107 P. 980;Flaherty v. Thomas, 12 Allen (Mass.) 428;Commonwealth v. Kimball, 38 Mass. (21 Pick.) 373;Nichols v. Squire, 5 Pick. (Mass.) 168;State v. Smith, 44 Tex. 443;Sugg v. Smith (Tex. Civ. App. May 1918) 205 S. ...St. Rep. 63;Continental Oil Co. v. Montana Concrete Co., 63 Mont. 223, 207 P. 116;State v. District Court, 134 Minn. 131, 158 N. W. 798;Gibson v. Commonwealth, 209 Ky. 101, 272 S. W. 43.         There is no inconsistency between the rule in the Hiller Case and that in People v. ......
  • Flynt v. Com., 2000-SC-0587-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 22 mai 2003
    ... . Page 415 . 105 S.W.3d 415 . Dustin M. FLYNT, Appellant, . v. . COMMONWEALTH of Kentucky, Real Party in Interest, and . Gregory M. Bartlett, Judge, Kentucky Circuit Court, Appellee. and . Commonwealth of Kentucky, Appellant, . ...Commonwealth, Transportation Cabinet, Ky., 676 S.W.2d 785, 789 (1984). See also Gibson v. Commonwealth, 209 Ky. 101, 272 S.W. 43 (1925) ("It is an elementary principle that where .. there are two possible interpretations, by one of ......
  • Martin v. High Splint Coal Co.
    • United States
    • Court of Appeals of Kentucky
    • 26 mars 1937
    ...... with other resources, shall be sufficient to defray the. estimated expenses of the Commonwealth for each fiscal. year. Taxes shall be levied and collected for public. purposes only. They shall be uniform upon all property. subject to taxation ...332, 157 S.W. 687; Neutzel v. Williams, 191. Ky. 351, 230 S.W. 942; Kirchdorfer v. Tincher, 204. Ky. 366, 264 S.W. 766, 40 A.L.R. 801; Gibson v. Commonwealth, 209 Ky. 101, 272 S.W. 43; Felts v. Linton, County Judge, 217 Ky. 305, 289 S.W. 312, and. Grant v. Leavell, 259 Ky. 267, 82 ......
  • Flynt v. Commonwealth of Kentucky, 2000-SC-0399-TG.
    • United States
    • United States State Supreme Court (Kentucky)
    • 22 mai 2003
    ....... 21. KRS 533.250(2). . 22. Commonwealth v. Halsell , Ky., 934 S.W.2d 552, 555, quoting American Trucking Ass'n v. Commonwealth, Transportation Cabinet , Ky., 676 S.W.2d 785, 789. See also Gibson v. Commonwealth , 209 Ky. 101, 272 S.W. 43 ("It is an elementary principle that where . . . there are two possible interpretations, by one of which the statute would be constitutional, and by the other it would not, it is the duty of the court to adopt that construction which would uphold it."). . ......
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