Singleton v. Com.
| Decision Date | 30 January 1948 |
| Citation | 208 S.W.2d 325,306 Ky. 454 |
| Parties | SINGLETON v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Whitley County; J. B. Johnson, Judge.
Proceeding by Commonwealth for confiscation of automobile, wherein intervening petition was filed by Clyde Singleton, claiming the automobile. From judgment ordering the confidscation and sale of the automobile, the claimant appeals.
Reversed.
R. L. Brown and Joe S. Feather, both of Williamsburg, for appellant.
Eldon S. Dummit, Atty. Gen., and Guy H. Herdman, Asst. Atty. Gen for appellee.
CLAY Commissioner.
This is an appeal from a judgment of the Whitley Circuit Court ordering the confiscation and sale of an automobile owned by appellant. The automobile, while in the possession of one Whitaker, was seized when he was arrested for illegally transporting alcoholic beverages in local option territory. Whitaker was later convicted of this offense, served a sentence, and paid a fine.
On this appeal appellant presents three grounds for reversal, but we deem it necessary to consider only the contention that the conviction of Whitaker was void.
On May 30, 1946, Whitaker was arrested for intoxication while operating appellant's automobile. After his arrest the vehicle was searched, and three one-half gallon jars of moonshine whiskey were found. The next day he was taken before a Justice of the Peace who issued a warrant of arrest for possessing intoxicating liquor in local option territory. At Whitaker's request the case was transferred to the Circuit Court where he insisted upon an immediate trial though the Grand Jury was not in session and no indictment had been returned. A trial was had without indictment, and the jury found him guilty, imposing a fine of $100 and 30 days' imprisonment.
Subsequently appellant filed an intervening petition in the case, alleging that the automobile driven by Whitaker was owned by him; that if had been loaned to Whitaker; but that its use for the purpose of transporting intoxicating liquor was without appellant's knowledge, consent or acquiescence.
Hearing was thereafter held by the Court on this intervening petition, at which appellant introduced testimony on his behalf. The Commonwealth introduced no evidence. The Court considered the evidence presented at the trial of Whitaker, and upon final submission, ordered the sale of appellant's automobile.
Section 242.360, KRS, provides in part as follows:
The contention made by appellant is that under the above statute, a valid conviction of the person arrested is a condition precedent to the right of the Commonwealth to confiscate and sell the vehicle involved. It is urged that the conviction of Whitaker was void because he was not prosecuted by indictment in the Circuit Court.
Section 9, Kentucky Criminal Code, provides that all public offenses may be prosecuted by indictment, except in certain cases not important here. Section 455.080, KRS, provides in substance that persons charged with misdemeanors may be prosecuted by warrant or information where the highest penalty that may be imposed is a fine of $100 and imprisonment for 50 days. Section 242.990, KRS, provides a maximum penalty for the offense of which Whitaker was convicted of a $100 fine and 60 days' imprisonment.
The above statutory and the code provisions make the offense of which Whitaker was charged an indicatable one. He was not prosecuted by indictment.
It is elementary that a court must have jurisdiction of the subject matter of an offense and of the person of the defendant. The former cannot be acquired by the consent of the accused, although the latter may be. 14 Am.Jur., 'Criminal Law,' Section 214.
As stated in 27 Am.Jur., 'Indictments and Information,' Section 3, page 585: 'The weight of authority supports the view that an indictment in proper form, being a prerequisite of jurisdiction and a matter in which the state is interested, is not subject to waiver by an accused, where indictment is made the proper method of prosecution by the Constitution or statutes of the jurisdiction.'
The reason for the rule is well stated by the New York Court of Appeals in People ex rel. Battista v. Christian, 249 N.Y. 314, 164 N.E. 111, 61 A.L.R. 793. In that case the defendant on a plea of guilty was sentenced to the penitentiary for burglary. He was proceeded against by information at his request and in conformity with a state statute. The Constitution of New York, however, provided that no person should be...
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...See also Annotation, 56 A.L.R.2d 837. For the Kentucky Court of Appeals, the opinion of able Commissioner Clay in Singleton v. Commonwealth, 306 Ky. 454, 208 S.W.2d 325, is a reaffirmation of the nonwaiver doctrine where jurisdiction would be conferred only by "[The court in Singleton, supr......
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...See also Annotation, 56 A.L.R. 2d 837. 4 For the Kentucky Court of Appeals, the opinion of able Commissioner Clay in Singleton v. Commonwealth, 306 Ky. 454, 208 S.W.2d 325, is a reaffirmation of the nonwaiver doctrine where jurisdiction could be conferred only by It is well to remember the ......
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Malone v. Com., No. 99-SC-722-T. DO] No. 99-SC-723-T. DO] No. 99-SC-724-T.
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