M'Cullough v. Commonwealth

3 Ky. 95

• Court: Court of Appeals of Kentucky
• Decided: May 2, 1807
• Status: Published

Opinion

The Opinion of the Court — This was an indict-m^nt [prefered and found in October 1804] against the defendant, for obstructing a highway by running a fence across the same, and the indictment concludes as at common law, without an averment that the offence was committed against the statute, &c. The court is opinion that no indictment upon a statute can be supported, unless it states the offence to have been committed against the statute. This indictment must be considered as an indictment at common law, and the only* inquiry is, whether it can be supported ; the legislature having by statute expressly provided a penalty for the offence different from the common law punishment

(a)* The court think the provisions of the act of 1802, con-elusive against the prosecution as for an offence at common law (b); That act declares, that all laws and statutes which provide for the punishment of offences for wbich other punishments are provided by act of assembly, shall be, and the same are thereby repealed ; from which it is evident that the common law punishment for this offence was taken away, and that only provided by the statute could be inflicted. No judgment therefore could legally have been rendered against the defendánt in the inferior court upon this indictment, either upoii the statute or common law.--Judgment reversed.*

“' A®s of §?9 6io7,’iPBrad! 37⅜.

{b) Ch. 53, ⅜ 24, p. 11 .

See now a£t of 1805, ch* 2, § 7^ p.ai¿