Thacker v. Commonwealth

• Decision Date: 15 February 1929
• Parties: THACKER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

16 S.W.2d 448

228 Ky. 819

THACKER v. COMMONWEALTH.

Court of Appeals of Kentucky

February 15, 1929

Rehearing Denied May 10, 1929.

Appeal from Circuit Court, Clark County.

Sarah V. Thacker was convicted of possessing intoxicating liquors as a second offense, and she appeals. Affirmed.

Fields Byers & Moore, Gardner K. Byers, and Herbert H. Moore, all of Louisville, for appellant.

J. W Cammack, Atty. Gen., and Samuel B. Kirby, Jr., Asst. Atty Gen., for the Commonwealth.

THOMAS J.

On April 3, 1928, the grand jury of Clark county returned an indictment against appellant and defendant below, Sarah V Thacker, charging her with the offense of unlawfully possessing intoxicating liquors within 12 months prior thereto, and in a second paragraph it was averred that defendant, prior to the commission of that offense and since March 22, 1922, when our present prohibition statute, commonly known as the "Rash-Gullion Act" (Acts 1922, c. 33), went into effect, committed the offense of unlawfully selling intoxicating liquors, and for which she was later convicted in the Clark circuit court upon an appeal to it from the city police court of Winchester, wherein she was first tried upon a warrant of arrest issued by that court. Upon her trial on this indictment, with such accusations made therein, she was convicted and sentenced to serve three years in the penitentiary. Her motion for a new trial was overruled, and to reverse that judgment she prosecutes this appeal.

It will be observed that, under the principles announced in the case of Johnson v. Commonwealth, 206 Ky. 594, 268 S.W. 302, the two offenses charged in this indictment are such as may be grouped under the provisions of section 2554a2, Ky. St., so as to authorize the felony punishment provided therein under the habitual offending feature of the statute, and which is not questioned by counsel for defendant. It is, however, argued with great confidence that the court erred (1) in the admission of evidence offered by the commonwealth, and to which defendant objected and accepted, and that with it eliminated defendant was entitled to a peremptory instruction, and the court erred in overruling his motion therefor; and (2) error of the court in the instructions given. Some additional argument is made with reference to the conduct of the court at and during the trial, but the matters complained of therein we do not regard of sufficient materiality to require discussion, and we will confine the opinion to a consideration and disposition of arguments (1) and (2).

1. In support of argument (1), it is contended that it was incompetent for the commonwealth to introduce any part of the record of the first conviction, except the judgment manifesting that fact, and that the court erred in permitting the introduction of other parts of it, including the warrant upon which defendant was arrested, containing the charge against her, and for which she was first tried in the city police court of Winchester, and later in the Clark circuit court, to which she appealed, and the cases of McKiney v. Commonwealth, 202 Ky. 757, 261 S.W. 276, Tall v. Commonwealth, 110 S.W. 425, 33 Ky. Law Rep. 541, Morgan v. Commonwealth, 170 Ky. 400, 186 S.W. 132, Vinson v. Commonwealth, 219 Ky. 482, 293 S.W. 984, and others of supposed collateral bearing from this court, together with a few cases from other jurisdictions, and also some text-writers, were cited. But all of the cases cited and relied on only go to the extent of holding that the first or prior convictions, under prosecutions within what is commonly designated as ""habitual criminal statutes," must be proven by the record, which must be introduced by the clerk of the court (or one of his deputies) in which the former conviction or convictions were had, and that it was incompetent to introduce the evidence heard upon that trial.

In the trial of this case the court permitted the clerk of the Clark circuit court to not only read the judgment convicting defendant in that court on her first or prior charge, as contained in the indictment, but to also read the judgment of conviction and other parts of the record made in the city police court of Winchester, including the warrant under which defendant was arrested and tried in that court, and which it is claimed, in this argument (1), constituted grevious error of such a prejudicial nature as to authorize a reversal of the judgment appealed from. In making this argument counsel contend that a judgment of conviction should show on its face all the facts necessary to authorize the increased punishment for a second or subsequent one, and that, unless it does so, then such increased punishment cannot be inflicted. But we do not construe any of the cases relied on as sustaining that contention, nor have we been able to find any case that does do so. It is true that in the Tall Case it was held that evidence of the former convictions was confined ""to the verdict and judgment of conviction and the sentence, and also proof showing that the defendant is the same person that was convicted of the previous felonies, which is the other competent evidence referred to in the statute." The statute therein mentioned was section 1130 of our present 1922 edition of Carroll's Statutes, providing for increased punishment for a second conviction of a felony, regardless of the nature of the felony, and (since there are no limitations for the prosecution of felonies) regardless also of the time when the first one was committed, except that it was done after the enactment and taking effect of that section, which was long prior to the time when the opinion in the Tall Case was rendered. There was, therefore, under that statute, no necessity whatever for any proof with reference to the prior conviction or convictions, other than the judgment manifesting that fact.

But a different question is involved in prosecutions under the habitual criminal feature of our prohibition statute, since as we have held in numerous cases, in order for the felony punishment therein provided for a second offense to be inflicted, it must appear and be shown that the first conviction was for an offense committed since March 22, 1922, when the prohibition act went into effect. Our opinions so holding, and which are in complete accord with those from other jurisdictions upon the subject, are based upon the proposition that it is incompetent for the Legislature to provide for an increased punishment for a second conviction, when the first offense of which defendant was convicted was committed before the enactment of the statute so prescribing. That conclusion was and is bottomed upon the fact that, if the increased felony punishment could be inflicted in cases where the first offense was committed before the enactment of the statute fixing the increased punishment, it would be, in effect, an ex post facto law, and therefore void, as violative of section 9, article 1, of the Constitution of the United States and of section 19 of our Constitution. The ex post facto feature of such a statute would consist in prescribing that the first committed offense should be an element and a component part of...