Gosney v. Commonwealth

Court of Appeals of Kentucky (pre-1976)

Gosney v. Commonwealth

217 S.W.2d 225, 309 Ky. 187, 1949 Ky. LEXIS 667

CourtCourt of Appeals of Kentucky (pre-1976)

DecidedJanuary 18, 1949

StatusPublished

Cited by7 cases

This text of 217 S.W.2d 225 (Gosney v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky (pre-1976) primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gosney v. Commonwealth, 217 S.W.2d 225, 309 Ky. 187, 1949 Ky. LEXIS 667 (Ky. 1949).

Pincite

Opinion

Opinion op the Court by

Judge Cammack

Overruling motion for appeal.

Under a charge of assault and battery Elmer G-osney and Elbert King were found guilty. The jury fixed Gosney’s punishment at one year in jail and that of King at two years in jail and a fine of $500. The record contains both a motion for an appeal and a statement of appeal. The statement of appeal recites that the judgement from which the appeal is being prosecuted is on page sixteen of the record. On page sixteen the following order appears: “This cause having been submitted on defendants ’ motion and grounds for a new trial herein, after due consideration, the court overrules said motion and grounds for a new trial, to which the defend•ants, Elmer Gosney and Elbert King, except and pray an appeal to the Court of Appeals, which is granted.” If a'final judgment was entered on the verdict, it was not •incorporated in the record, so this Court is without jurisdiction to entertain the motion for an appeal.

It is provided in section 347 of the Criminal Code of Practice that a defendant in a misdemeanor action has the right to have a judgment against him reviewed by this Court where his fine is as much as $50 o-r his imprisonment exceeds 30 days. Section 335 of the Criminal Code of Practice provides that an appeal in a felony case shall be taken only on a final judgment except on behalf of the Commonwealth. In commenting upon that section it was said in the case of Shepherd v. Commonwealth, 284 Ky. 30, 143 S. W. 2d 725, that an appeal in a criminal case may be taken only from a final judgment except on behalf of the Commonwealth. That rule is likewise applicable to misdemeanor cases.

"Wherefore, the motion for an appeal is overruled.

Free access — add to your briefcase to read the full text and ask questions with AI

Opinion op the Court by

Judge Cammack

Overruling motion for appeal.

Under a charge of assault and battery Elmer G-osney and Elbert King were found guilty. The jury fixed Gosney’s punishment at one year in jail and that of King at two years in jail and a fine of $500. The record contains both a motion for an appeal and a statement of appeal. The statement of appeal recites that the judgement from which the appeal is being prosecuted is on page sixteen of the record. On page sixteen the following order appears: “This cause having been submitted on defendants ’ motion and grounds for a new trial herein, after due consideration, the court overrules said motion and grounds for a new trial, to which the defend•ants, Elmer Gosney and Elbert King, except and pray an appeal to the Court of Appeals, which is granted.” If a'final judgment was entered on the verdict, it was not •incorporated in the record, so this Court is without jurisdiction to entertain the motion for an appeal.

It is provided in section 347 of the Criminal Code of Practice that a defendant in a misdemeanor action has the right to have a judgment against him reviewed by this Court where his fine is as much as $50 o-r his imprisonment exceeds 30 days. Section 335 of the Criminal Code of Practice provides that an appeal in a felony case shall be taken only on a final judgment except on behalf of the Commonwealth. In commenting upon that section it was said in the case of Shepherd v. Commonwealth, 284 Ky. 30, 143 S. W. 2d 725, that an appeal in a criminal case may be taken only from a final judgment except on behalf of the Commonwealth. That rule is likewise applicable to misdemeanor cases.

"Wherefore, the motion for an appeal is overruled.

Cite This Page — Counsel Stack

Bluebook (online)

217 S.W.2d 225, 309 Ky. 187, 1949 Ky. LEXIS 667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gosney-v-commonwealth-kyctapphigh-1949.

Opinion

Related

Cite This Page — Counsel Stack