Parsley v. Com.

• Citation: 272 S.W.2d 326
• Parties: Brooks PARSLEY and Willie Parsley, Jr., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
• Decision Date: 22 October 1954
• Court: United States State Supreme Court — District of Kentucky

Page 326

272 S.W.2d 326

Brooks PARSLEY and Willie Parsley, Jr., Appellants, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Oct. 22, 1954.

Lewis & Weaver and William J. Weaver, London, for appellant.

J. D. Buckman, Jr., Atty. Gen., Zeb A. Stewart, Asst. Atty. Gen., for appellee.

MOREMEN, Justice.

This case presents a question as to when a judge, without a jury, upon a plea of guilty by defendant, may fix the degree of punishment.

Appellants, Brooks Parsley and William Parsley, Jr., were indicted by the Laurel County Grand Jury and charged with the common law offense of assault and battery. A jury returned a verdict of guilty and fixed their punishment at a fine of $2,000 each. A motion for a new trial was sustained and, on the same day, a judgment was entered which reads in part:

'This case came on for hearing on today and the defendants being present and having waived the right of a trial by jury submitted to the law and facts and each entered a plea of guilty to the charge in the indictment, and their punishment is fixed by the court at 12 months in jail and a fine of $100.00 each.'

Section 258 of the Criminal Code and KRS 431.130 designate the manner in which punishment for crime may be inflicted. Both of these sections were amended by acts of the General Assembly which became effective in June 1952.

Perhaps a better understanding of the present problem may be had if a resume of the old law is given. Before the present enactment, the Code simply provided that in verdicts of 'guilty' or 'for the Commonwealth,' the jury should fix the degree of punishment to be inflicted, unless the same was fixed by law. This was interpreted to mean that if the law fixed the punishment, leaving no room for discretion on the part of the jury as to its kind or extent, it was not necessary for them to set it out in their verdict, and the court could inflict the definite punishment by the judgment. Bates v. Commonwealth, 190 Ky. 338, 227 S.W. 472. But if it was not so fixed and choice could be exercised in a field bounded only by maximum and minimum limitations, then it was mandatory that the jury fix the degree of punishment to be inflicted. A corollary right also developed by which a judge was given the right to inflict the minimum penalty which a jury might have imposed, the reason being that the defendant would not be heard to say that his rights were prejudiced when the punishment received was no more than the minimum the jury could have inflicted. Bates v. Commonwealth, 190 Ky. 338, 227 S.W. 472; Strunk v. Commonwealth, 302 Ky. 284, 194 S.W.2d 504; and Strunk v. Commonwealth, 302 Ky. 464, 194 S.W.2d 1002.

Section 258 of the Criminal Code now reads:

'In verdicts of 'guilty,' or a plea of guilty, 'for the Commonwealth,' by agreement of the Commonwealth's Attorney and the defendant, with advice of an attorney, the court may, within its discretion, and without the intervention of a jury, fix the degree of punishment to be inflicted within the minimum or maximum punishment prescribed by law, except where the offense is punishable by death. In the absence of such agreement and in all cases where the offense is punishable by death, the jury shall fix the degree of punishment, unless the same be fixed by law.'

An examination of the foregoing section discloses that the broad power to fix the degree of punishment is still vested in the jury, but the judge is given broader powers than he had before its enactment. Now he may, without intervention of the jury, act when certain conditions precedent are met and, on a plea of guilty by the defendant, may...