King v. City of Pineville

• Decision Date: 07 December 1927
• Citation: 222 Ky. 73
• Parties: King v. City of Pineville, et al.
• Court: United States State Supreme Court — District of Kentucky

222 Ky. 73

King v. City of Pineville, et al.

Court of Appeals of Kentucky.

Decided December 7, 1927.

1. Indictment and Information. — Term "indictable offense," as used in Constitution, section 12, providing that no person for an indictable offense shall be proceeded against criminally by information except in certain cases, has reference to common-law offenses or to statutory offenses, punishments for which are infamous.

2. Indictment and Information. — Modern test in determining whether an offense is infamous requiring an indictment is the nature of the punishment inflicted.

3. Indictment and Information. — Since Ky. Stats., section 1309, requires that one convicted for first offense of carrying concealed and deadly weapon shall, in addition to fine and imprisonment, be excluded from right of suffrage for period of two years, it is an "infamous offense," which requires an indictment, under Constitution, section 12.

4. Indictment and Information. — Part of Ky. Stats., section 1093, as amended by Laws 1924, c. 43, purporting to vest in courts of justice of the peace, which have no machinery for grand jury, jurisdiction to try first offense of carrying concealed and deadly weapons, held unconstitutional, since such offense requires an indictment, under Constitution, section 12.

5. Criminal Law. — Police court of city of Pineville, which is a city of the fourth class, held without jurisdiction, under Constitution, section 143, and Ky. Stats., section 3513, giving police courts such criminal jurisdiction as justices of the peace have, to try one for first offense of carrying concealed and deadly weapon in violation of section 1309, since so much of section 1093, as amended by Laws 1924, c. 43, purporting to vest in justices' courts jurisdiction of such offense, is unconstitutional under Constitution, section 12, requiring indictment, and even if police courts may impanel grand jury under Criminal Code of Practice, section 307, such courts have no jurisdiction, since justices of the peace have no jurisdiction.

Motion to Dissolve Injunction.

JAMES S. GOLDEN for plaintiff.

E.B. WILSON for defendants.

OPINION OF THE COURT BY JUDGE DIETZMAN.

Overruling motion to dissolve injunction.

This case is before me on a motion to dissolve a temporary injunction granted by the judge of the Bell circuit court enjoining the execution of a judgment of the police court of Pineville against the present plaintiff.

The plaintiff in this action was tried in the police court of Pineville for the first offense of carrying a concealed and deadly weapon. He was found guilty and fined the sum of $50, and sentenced to confinement in the Bell county jail for a period of 10 days. He was also adjudged to be disfranchised and excluded from the right of suffrage for the period of 2 years from the date of the judgment. Contending that the police court of Pineville was without jurisdiction to try him for the named offense, the plaintiff herein brought this action to enjoin the execution of the judgment referred to with the result as above set out. The chancellor rested his decision on the case of Smiddy v. Commonwealth, 214 Ky. 100, 282 S.W. 774, wherein we held without discussion that a police court has no jurisdiction to try one for the offense of carrying concealed and deadly weapons. The defendants in this action insist that the decision of this court in Smiddy v. Commonwealth is erroneous.

The argument of the defendants runs thus: Section 143 of the Kentucky Constitution provides that police courts may have such criminal jurisdiction within the corporate limits of the city or town in which they are established as justices of the peace have. The statutes governing cities of the fourth class, of which Pineville is one, vest in the police courts of such cities "original concurrent jurisdiction" within the limits of such cities of all offenses within the jurisdiction of justices of the peace. See Kentucky Statutes, section 3513. Section 1093 of the Kentucky Statutes, as amended by chapter 43 of the Acts of 1924, specifically vests in the courts of justices of the peace jurisdiction of the offenses of petit larceny, vagrancy, and first offense of carrying concealed and deadly weapons. In Stone v. City of Paducah, 120 Ky. 322, 86 S.W. 531, 27 Ky. Law Rep. 717, this court said that section 143 of the Constitution does not place any limitation upon the jurisdiction which may be granted to justices of the peace by the General Assembly, but leaves the matter within its discretion, but does limit the jurisdiction to try common-law or statutory offenses that may be given to police and city courts to whatever the justices have. Hence the Legislature had the right to vest the trial of the first offense of carrying concealed and deadly weapons in the courts of justices of the peace, as was done by the 1924 amendment to section 1093 of the Statutes, and as the Constitution authorized, and the charters of the cities of the fourth class vested, the same jurisdiction in police courts of that class of cities as justices of the peace have, therefore the police court of Pineville did have jurisdiction to try the case against the plaintiff it did. Of course, the fundamental premise on which the conclusion of the defendants rests is that the Legislature had the right to vest in courts of justices of the peace jurisdiction to try the first offense of carrying concealed and deadly weapons. By section 1309 of the Kentucky Statutes the first offense of carrying a concealed and deadly weapon is declared a high misdemeanor and, in addition to the fine and imprisonment therein provided as a penalty, the statute requires that one convicted for the first offense of carrying a concealed and deadly weapon shall be excluded from the right of suffrage for the period of 2 years from the date of the judgment.

As stated in the case of Lakes v. Goodloe, 195 Ky. 240, 242 S.W. 632, courts of justices of the peace being without the machinery necessary to cause indictments to be returned, if an offense, jurisdiction to try which is vested in the courts of justices of the peace, is an indictable offense, within the meaning of section 12 of the Constitution, which provides that no person for an indictable offense shall be proceeded against criminally by information except in certain cases not here material, any attempt to prosecute such an offense by warrant or information would be unauthorized, and hence the attempt to vest jurisdiction to try such an offense in the courts of justices of the peace which have no machinery for a grand jury would be unconstitutional. Is the offense denounced by section 1309 of the...