Huyser v. Commonwealth

• Decision Date: 09 October 1903
• Citation: 76 S.W. 174,116 Ky. 410
• Parties: HUYSER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

76 S.W. 174

116 Ky. 410

HUYSER v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 9, 1903

Appeal from Circuit Court, Hart County.

"To be officially reported."

Ezra Huyser was convicted of violations of the local option law and fined, and required to give a bond for his good behavior. From the judgment requiring the bond he appeals. Reversed.

S. M Payton, for appellant.

C.J Pratt and M. R. Todd, for the Commonwealth.

SETTLE J.

The appellant, Ezra Huyser, was convicted in the lower court under each of four indictments for selling spirituous liquors in violation of the local option law, his punishment in three of the cases being a fine of $60 each, and in the fourth a fine of $100. The fines, together with the costs of the prosecutions, were immediately paid by him. It appears from the record that the four convictions of appellant occurred at the same term of court, and the last two of them on the same day, and that these convictions were had under the provisions of an act of the Legislature of Kentucky amendatory of the general local option law, approved March 11, 1902. Acts 1902 p. 41, c. 14. There are two sections of this amendment imposing penalties for a violation of the act. Section 2 provides that "it shall be unlawful for any person to sell, lend, give, procure for or furnish to another any spirituous, vinous or malt liquors, or have in his possession spirituous, vinous, or malt liquors, for the purpose of selling them in any territory where said act is in force, and any person so offending shall be fined not less than fifty, nor more than one hundred dollars, and imprisoned not less than ten nor more than fifty days." It will be observed that the object of the foregoing section is not the punishment of the person who himself sells or otherwise disposes of spirituous, vinous, or malt liquors where local option is in force (for his punishment is provided for by section 5 of the act), but its object is the punishment of the person who shall sell, lend, give, procure for, or furnish to another such liquors to be sold by the latter where local option is in force, or for having in his (the former's) own possession such liquors for the purpose of selling them in the forbidden territory. Section 5, under which appellant was convicted, takes the place of section 4 of the original act, and its object is the punishment of any person who sells liquors where local option is in force. Its language embraces any sale, barter, or loan of spirituous, vinous, or malt liquors that may be "directly or indirectly" made within the inhibited territory. This section also makes it an offense for any person to knowingly furnish or rent a house, room, wagon, or any conveyance or thing in which such liquors are sold, bartered, or loaned. And the punishment prescribed for the offenses named in this section is a fine of not less than $60 nor more than $100, or imprisonment in jail not less than 10 nor more than 50 days, or both fine and imprisonment, in the discretion of the court or jury. Section 3 of the amendment provides that "on the second or any subsequent conviction for a violation of said act, or any of its amendments, the court shall require the defendant to execute bond in the sum of $200.00 to be of 'good behavior' for the period of twelve months." A subsequent paragraph of section 3 allows the court, in its discretion, to increase the amount of the bond, and, if the bond is not given, to commit the defendant to jail for a period not exceeding 90 days, to be fixed by the court. During the same term of the court at which the four convictions of the appellant were secured, and on the same day of his conviction on each of the two indictments last tried, a rule was issued against him by order of the court, returnable on the tenth day of that term, requiring him to give bond as provided by section 3 of the act, supra. Appellant appeared in obedience to the rule, and filed a response thereto, which the court held insufficient; whereupon the rule was made absolute, and it was adjudged that he execute bond in the sum of $200 for his "good behavior" for a period of 12 months, and upon his failure to do so that he be confined in jail 90 days. The bond was not executed by him, and we are now called upon to consider the questions of law raised by the appeal of the case to this court.

No complaint is made of the action of the lower court in the matter of the fines imposed under the indictments, but it is contended for appellant that the court had no authority to require of him the execution of the bond, because (1) the act of March 11, 1902, is in violation of section 51 of the state Constitution, in that it relates to more than one subject; (2) that section 3 of the act is void for uncertainty; and (3) that the act imposes a double punishment. Section 51 of the Constitution provides that "no law enacted by the General Assembly shall relate to more than one subject and that shall be expressed in the title." The title of the act approved March 11, 1902, is as follows: "An act for the better enforcement of an act approved March 10, 1894, entitled 'An act whereby the sense of the people of any county, city, town or district, or precinct may be taken as to whether spirituous, vinous or malt liquors shall be sold, bartered or loaned therein, and to amend section 4 of said act."' The general subject of the act is the better enforcement of the "local option law," and is so expressed in its title. Though embracing one or more offenses that are not to be found in the original law of which it is an amendment, it contains no provision that is not germane to the subject expressed in the title, and, as a whole, its meaning is so obvious that it can be readily understood by a person of ordinary intelligence. The court has repeatedly announced, in effect, that no provision of a statute directly or indirectly relating to the subject expressed in the title, having a natural connection therewith, and not foreign to the same, should be deemed within the inhibition of section 51 of the Constitution, which provides that "no law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title." Chiles v. Drake, 59 Ky. 146, 74 Am. Dec. 406; L. & O. T. R. Co. v. Ballard, 59 Ky. 165; Jacobs' Adm'r v. L. & N. R. R. Co., 73 Ky. 263; Allen v. Hall, 77 Ky. 85; McArthur v. Nelson, 81 Ky. 67; Commonwealth v. Godshaw, 92 Ky. 435, 17 S.W. 737; Conley v. Commonwealth, 98 Ky. 125, 32 S.W. 285; Weber v. Commonwealth (Ky.) 72 S.W. 30. Tested by the foregoing rule, the statute in question is not repugnant to section 51 of the Constitution, and we so decide.

We are not disposed to agree with appellant's contention that so much of section 3 of the act, supra, as empowers the court after two convictions for a violation of its provisions, to require of the person so convicted a bond for his "good behavior," is void for uncertainty because it fails to indicate in express language what is meant by the words "good behavior." Section 382 of the Criminal Code provides that "a person may be arrested for the purpose of requiring of him security to keep the peace, or for his good behavior." The grounds for such arrest are set forth in subsections 1, 2, and 3 of section 382, but the Code nowhere defines the meaning of the term "good behavior." It is, however, an expression as old as the common law. Behavior is the mode of conducting one's self, and is used to express one's manner of living. To be put upon one's "good behavior" is to be in a state of trial, in which something important depends on propriety of conduct. Therefore the legal signification of the expression "good behavior," as used in the statute supra, is that one who is placed under bond for his "good behavior," as therein authorized, is to be in a state of trial or probation with respect to the subject-matter of the statute. He must, for a given time, behave with such propriety of conduct as to make himself amenable to the statute. In other words, he must keep within its letter and spirit by refraining from any further violation of its provisions during the period of probation, otherwise he or his surety will have to pay the penalty named in the bond. We are of the opinion, therefore, that the meaning of the words "good behavior," found in the statute, is so well known, and their connection with the intent and purpose of the statute so patent, that they cannot fail to be understood...