Pursifull v. Com.
| Decision Date | 15 November 1898 |
| Citation | 47 S.W. 772 |
| Parties | PURSIFULL v. COMMONWEALTH. [1] |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, Bell county.
"Not to be officially reported."
Charlie Pursifull was convicted of the offense of selling liquor in violation of a local prohibitory law, and appeals. Reversed.
Calvin Hurst, for appellant.
W. S Taylor and M. H. Thatcher, for appellee.
The indictment charges the appellant, Pursifull, with selling spirituous liquors, etc., in violation of certain local acts prohibiting the sale of spirituous, vinous, and malt liquors in the counties of Bell, Harlan, Perry, and Leslie. He gave bond for his appearance to answer the indictment, and, having failed to appear, the court rendered judgment against him by default. The court did not hear evidence on the subject of his guilt. Neither was a jury impaneled to fix the punishment. The court imposed a fine of $100. Under the doctrine of the case of Stamper v. Com. (Ky.) 42 S.W. 915, the penalty to be imposed for selling liquors in violation of local statutes is that imposed by the general law.
It is insisted that the court could not render judgment by default because the degree of punishment to be inflicted in such cases is not "fixed by law." Section 258, Code Cr Prac., reads as follows: "In verdicts of 'Guilty,' or 'For the commonwealth,' the jury shall fix the degree of punishment to be inflicted, unless the same be fixed by law." In Com. v. Cheek, 1 Duv. 27, it is said "that, as the trial on an indictment for a misdemeanor may be had in the absence of the defendant (section 185), his failure to appear upon the call of the indictment for trial will have the same effect as his failure to plead after the overruling of his demurrer; and that, in either case, final judgment should be entered against him without the intervention of a jury, except where the punishment is not definitely fixed by law, and where, for that reason, a jury is necessary to fix the punishment." Under this opinion, judgment can be rendered by default in a misdemeanor case without the intervention of a jury, except where the punishment is not definitely fixed by law, in which case it is necessary to impanel a jury to fix the punishment. This court said in Herron v. Com., 79 Ky. 39, that section 258, Code Cr. Prac., means "that if the law fixes the punishment, leaving no room for discretion on the part of the jury as to its kind or extent, then the law does not require them to fix the degree of punishment in their verdict."
Section 1304, Ky. St., reads as follows: "Any person who shall without license so to do, sell or otherwise dispose of spirituous, vinous, or malt liquors, shall, for each offense be fined not less than twenty nor more than one hundred dollars." Section 2557, Id., provides, where the question of the sale of liquors has been submitted to the voters of a county, city, town, district, or precinct, and the vote is adverse thereto, then any person who shall sell liquors in such territory shall be fined in the sum of not less than...
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Darden v. State
...to sentence for the lowest penalty, but in all other cases it appears that a jury should be impaneled to fix the punishment. 49 S.W. 795; 47 S.W. 772. L. Rogers, Attorney General, and G. W. Hendricks, for appellee; Vaughan & Vaughan, of counsel. 1. Until appellant was sentenced in conformit......
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Bates v. Commonwealth
... ... as hereafter stated. Commonwealth v. Neat, 89 Ky ... 241, 12 S.W. 256, 11 Ky. Law Rep. 434; Pursifull v ... Commonwealth, 47 S.W. 772, 20 Ky. Law Rep. 863; ... Walston v. Commonwealth, 102 S.W. 275, 31 Ky. Law ... Rep. 378; Payne v. Commonwealth, ... ...
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Jett v. Com.
... ... 20 gallons under a penalty of not less than $100 nor more ... than $200. That law, however, has been held in two cases to ... have been repealed by the act for the government of cities of ... the fourth class. Brown v. Com. (Ky.) 34 S.W. 12, ... and Pursifull v. Com. (Ky.; decided Nov. 15, 1898) 47 S.W ... 772. It follows, therefore, and is, indeed, conceded by the ... commonwealth, that the instruction to impose a penalty, if ... the jury found her guilty, of not less than $100 nor more ... than $200, was erroneous; and the case must be reversed ... ...