Klyman v. Commonwealth

JUDGE PAYNTER demvered the opinion of the court. No question was made in this case in the police court of Sebree City, where it was first tried, as to the jurisdiction of that court. No such question was raised in the circuit court to which ah appeal was taken, nor was any suggestion made to this court by counsel that the police court had no jurisdiction of the prosecution. The question for the first time was raised by the petition for a rehearing. This court, therefore, did not consider the question. Sebree City is a town of the sixth class. By sec. 3710, Kentucky statutes, police courts of towns of that class have jurisdiction concurrent with justices’ courts in criminal and penal prosecutions. By sec. 1093, Kentucky Statutes, justices have jurisdiction concurrent with circuit courts of all penal cases, the punishment of which is limited to a fine not' exceeding one hundred dollars, or imprisonment not exceeding fifty’ days, or both. This prosecution is under sec. 1972, Kentucky Statutes, whereby the appellant, the owner of a pool table, is charged with knowingly suffering and permitting for compensation a minor to play a game on his table, without the written permission of the parent of the minor. The person so offending “shall be fined for each offense one hundred dollárs, and shall forfeit the right and privilege of again Teeeping such talles.” It will be seen that the penalty for the offense is not only [486] a fine of one hundred dollars, but the greater one in all probability of a forfeiture of the right and privilege of again keeping such tables. We do not think the police court of Sebree City had jurisdiction of the offense charged. In Cheek v. Commonwealth, 87 Ky., 42, it appeared'that the accused was convicted on the charge of being bribed to vote at an election, and was fined fifty dollars, and by the statute under which the conviction took place, he was “excluded from office and i. Jfrage.” It was contended in that case that this court did not have jurisdiction, because under the provisions of the Criminal Code appeals are limited to cases of fines for over fifty dollars or imprisonment for over thirty days. The court held that as the judgment deprived the accused of a most sacred right, in being excluded from office and suffrage, therefore he had the right of appeal. In Johnson v. Commonwealth, 90 Ky., 53, which was a prosecution under the same statute as in Cheek v. Commonwealth, the accused was fined ten dollars and excluded from suffrage and office. This court held that it had jurisdiction of the appeal for the reasons stated. If in these cases this court had jurisdiction because the. accused was deprived of a right in addition to the imposition of a fine, much less than the amount which gave the court jurisdiction, it must follow that, although the fine in the case at bar was no greater than by law the police court could impose, yet, as the effect of the judgment was to deprive the accused of his right and privilege of again keeping pool-tables, the penalty imposed by the statute was beyond! the jurisdiction of the court. The effect of the conviction was to deprive the accused of a franchise — a property right in addition to the fine im [487] jjosed. Therefore, we hold the police court of Sebree City did not have jurisuiction of the proceeding. If it had-no jurisdiction the appeal to the circuit court did not give that court jurisdiction, and, therefore, it had no jurisdiction to enter a fine against the accused on such appeal, and should have dismissed the prosecution for want of jurisdiction in the police court. (Robinson v. Commonwealth, 6 Dana, 287; Bassett v. Oldham, 7 Dana, 168; Howard v. Jones, 2 B. M., 526.) The rehearing is granted and the judgment reversed, with direction that the court below dismiss the prosecution.