Newton v. Commonwealth

• Decision Date: 02 February 1923
• Citation: 197 Ky. 496,247 S.W. 707
• Parties: NEWTON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

247 S.W. 707

197 Ky. 496

NEWTON v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 2, 1923

Appeal from Circuit Court, Pulaski County.

S Newton was convicted of selling intoxicating liquor, and he appeals. Affirmed.

Wm Waddle, of Somerset, for appellant.

Chas I. Dawson, Atty. Gen., Thos. B. McGregor, Asst. Atty. Gen and W. N. Flippin, of Somerset, for the Commonwealth.

MOORMAN J.

Appellant was convicted in the Pulaski circuit court of the offense of selling intoxicating liquor, and was fined $200 and given a jail sentence of 30 days. He has appealed from the judgment on the sole ground that the lower court erred in refusing to sustain his plea of former conviction.

On the trial of the case below the defendant pleaded in bar of this prosecution a judgment of conviction of the Pulaski circuit court rendered on March 20, 1922. The plea alleged that defendant had previously been convicted in the Pulaski circuit court of having spirituous liquor in his possession for the purpose of sale, and that the evidence introduced in support of that charge was identical with that on which this indictment was procured. We note that it was not alleged in the plea that the former judgment had been satisfied, or was in full force and effect, or had not been superseded, modified, or reversed.

This court takes judicial cognizance of its own decisions and necessarily must know that the judgment of the Pulaski circuit court, rendered on March 20, 1922, was reversed by this court in Newton v. Commonwealth, 195 Ky. 764, 243 S.W. 1031. Without deciding, therefore, the question as to whether a conviction procured on evidence of the doing of a certain act is a bar to another prosecution for a different offense committed in the doing of the same act, we come to the question involved: Does a conviction in a circuit court, which has been reversed by this court, constitute jeopardy, within the meaning of section 13 of the Constitution, or may it be pleaded in bar of a subsequent prosecution based on the same evidence, though for a different offense?

A plea of former conviction, under our practice, is considered as controverted by denial and by any matter of avoidance that may be shown in the evidence. Section 179, Criminal Code; Commonwealth v. Rose, 107 Ky. 566, 54 S.W. 863, 21 Ky. Law Rep. 1281. And section 270 of the Criminal Code provides that the granting of a new trial places the parties in the same...