Phoenix Hotel Co. v. Com.

• Decision Date: 01 May 1913
• Citation: 156 S.W. 117,153 Ky. 507
• Parties: PHOENIX HOTEL CO. v. COMMONWEALTH. [d]
• Court: Kentucky Court of Appeals

156 S.W. 117

153 Ky. 507

PHOENIX HOTEL CO. v. COMMONWEALTH. ^[d]

Court of Appeals of Kentucky.

May 1, 1913

Appeal from Circuit Court, Fayette County.

Penal action by the Commonwealth against the Phænix Hotel Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Geo. C Webb and Shelby & Shelby, all of Lexington, for appellant.

D. Gray Falconer and Chester D. Adams, both of Lexington, and James Garnett, Atty. Gen., and D. O. Myatt, Asst. Atty. Gen., for the Commonwealth.

HOBSON C.J.

This is a penal action instituted by the commonwealth against the Phænix Hotel Company, a corporation, of Lexington, Ky.; it being charged in the petition that the defendant in violation of section 1944, Ky. St., had in its possession three quail between the 1st of January and the 15th of November in the year 1912, there being three paragraphs to the petition, and a judgment being prayed in each paragraph for the sum of $25. The defendant by its answer alleged that it did have in its possession the quail referred to, but that they were not caught or killed in the state of Kentucky, but were purchased from a wholesale dealer in the city of Chicago, who in turn had purchased them in the open market in the city of Baltimore, Md. The circuit court sustained a demurrer to the answer, and gave judgment against the defendant in the sum of $75. The defendant appeals.

A motion has been entered to dismiss the appeal on the ground that the court has no jurisdiction. Section 11 of the Criminal Code of Practice provides: "The proceedings in penal actions are regulated by the Code of Practice in civil actions." By section 950, Ky. St., no appeal shall be taken to this court in a civil action from a judgment for the recovery of money if the value in controversy is less than $200. It is insisted that, as the judgment here was for only $75, no appeal lies. But section 347 of the Criminal Code is as follows: "The Court of Appeals shall have appellate jurisdiction in penal actions and prosecutions for misdemeanors, in the following cases only, viz.: If the judgment be for a fine exceeding fifty dollars, or for imprisonment exceeding thirty days; or, if the judgment be for the defendant, in cases in which a fine exceeding fifty dollars, or confinement exceeding thirty days, might have been inflicted." It will be observed that by this section the court is given jurisdiction in penal actions if the judgment is for a fine exceeding $50, and as the fine here is $75, the court has jurisdiction.

It is also insisted that it was improper to join three charges in one action in different paragraphs. But the commonwealth brought the action, the defendant made no objection to the form of the petition, and a judgment having been rendered in favor of the commonwealth as prayed, it cannot now be heard to object to the form of its own action. The court has in a number of cases taken jurisdiction under similar circumstances. Com. v. L. & N. R. R. Co., 80 Ky 293, 44 Am. Rep. 475; L. & N. R. R. Co. v Commonwealth, 92 Ky. 114, 17 S.W. 274, 13 Ky. Law Rep. 439; Stratman v. Com., 137 Ky. 500, 125 S.W. 1094, 26 L. R. A. (N. S.) 949, 136 Am. St. Rep. 299.

This brings us to the merits of the controversy. The question to be determined is: May one lawfully have in possession between January 1st and November 15th in this state quail that have been killed in another state? The question turns on the proper construction of our statutes.

By an act approved February 27, 1894, entitled "An act to protect game and small birds," it is provided as follows (Acts 1894, pp. 40, 41):

"1. It shall be unlawful for any person within this state to catch, kill, or pursue with such intent, any buck, doe or fawn, or have the same in possession after it has been caught or killed, between the first day of March and the first day of September in each year." Ky. St. § 1939.

"2. No person shall catch, kill, or pursue with such intent, or have the same in possession after it has been caught or killed, any black [grey] or fox squirrel, between the first day of February and the fifteenth day of June in each year: Provided, grey squirrels may be killed for protection of crops." Section 1940.

"3. No person shall catch or kill, or pursue with such intent, or have the same in possession after it has been caught or killed, any wild goose, wood-duck, teal or other wild, duck, between the first day of April and the fifteenth day of August in each year." Section 1941.

"4. No person shall catch, kill, or pursue with such intent, or have the same in possession after it has been caught or killed, any wild turkey, between the first day of February and the first day of September in each year." Section 1942.

"5. No person shall catch, kill, or pursue with such intent, or have the same in their possession after it has been caught or killed, any woodcock, between the first day of February and the twentieth day of June in each year." Section 1943.

"6. No person shall catch, kill, or pursue with such intent, or have the same in possession after it has been caught or killed, any quail, partridge or pheasant, between the first day of January and the fifteenth day of November in each year." Section 1944.

The seventh section makes a similar provision as to doves; the eighth as to other smaller birds; the tenth as to the nests or eggs of wild birds. The eleventh section provides the penalty for the violation of the act. The ninth, twelfth, and thirteenth sections are as follows:

"9. No person shall at any time catch, kill, or take by means of net, trap, box or snare, or have in possession after having been so caught, killed or taken, any quail, partridge or pheasant." Section 1947.

"12. The possession of any of the animals or birds intended to be protected by this law within the periods for which their killing or pursuit is hereby prohibited shall be prima facie evidence that the said animal or bird was unlawfully caught or killed, and the possession thereof unlawful." Section 1950.

"13. Any person exposing for sale any of the animals or birds intended to be protected by this law within the periods for which the taking or killing thereof is hereby prohibited shall, for each animal or bird so exposed for sale, be subject to the same penalty as herein provided for the unlawful killing or taking of each animal or bird." Section 1951.

The sections of the act above quoted are taken bodily from an act approved March 11, 1876, entitled "An act to protect game and small birds and to punish trespass." See Acts 1875-76, p. 55. By an act approved March 24, 1904, entitled "An act prohibiting the sale or transportation of wild turkeys, pheasants, grouse, partridge or quail within the state of Kentucky," it is provided as follows:

"1. That it shall be unlawful in the state of Kentucky, at any time, to buy, sell, expose for sale, offer for sale, or have in possession for the purpose of bartering or selling any wild-turkeys, pheasants, grouse, partridge or quail, which have been killed within this state.

"2. That it shall be unlawful for any person, corporation or common carrier to receive for transportation, or to transport, or cause to be transported, or to have in possession with the intent to transport, or to secure the transportation of, within or without this state, any of the birds or fowls mentioned in section one of this act, which have been killed within this state." See Acts 1904, p. 262; Ky. St. §§ 1939-1951.

It is manifest that the meaning of the first six sections of the act of 1894 is the same, for they are each couched practically in the same language; that is, the rule as to deer, squirrels, wild geese or wild ducks, wild turkeys, and quail are the same. The natural meaning of the first section is that it shall be unlawful within this state to catch or kill any deer or have the deer in possession after it has been so caught or killed, between the 1st day of March and the 1st day of September in each year. The words "the same" would indicate that the Legislature had in mind a possession of the thing which it had forbidden should be caught or killed; the act of 1894 following literally the language of the act...