Munn v. Commonwealth

889 S.W.2d 49, 1994 Ky. App. LEXIS 146, 1994 WL 700860
CourtCourt of Appeals of Kentucky
DecidedDecember 16, 1994
DocketNo. 93-CA-2064-DG
StatusPublished
Cited by2 cases

This text of 889 S.W.2d 49 (Munn v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Munn v. Commonwealth, 889 S.W.2d 49, 1994 Ky. App. LEXIS 146, 1994 WL 700860 (Ky. Ct. App. 1994).

Opinion

OPINION AFFIRMING AND REMANDING

GUDGEL, Judge:

This case is before us on discretionary review from an opinion and order of the Greenup Circuit Court reversing the Green-up District Court’s dismissal of charges of cruelty to animals in the second degree against appellant Marvin Munn. Appellant contends that the circuit court erred by finding that the governor’s alleged 1980 veto of the Kentucky General Assembly’s Senate Bill 263 was valid, and hence, that birds are not excepted from the definition of the word “animal” set forth in KRS 446.010(2), such [50]*50that appellant may be prosecuted for cruelty to animals in the second degree. For the reasons set out below, we affirm.

In 1974 our legislature adopted a new penal code by enacting HB 232 into law. Section 331 of HB 232 amended KRS 446.010 by creating a new subsection 2 which for statutory purposes defines the word “animal” as including all warm-blooded living creatures except human beings. Section 223 of the same bill, codified as KRS 526.130, created the Class A misdemeanor offense of cruelty to animals in the second degree, thereby prohibiting any conduct by which an animal is caused to fight for pleasure or profit. As the parties concede such conduct would include the practice of cockfighting, it is clear that in 1974 our state legislature specifically criminalized the practice of cockfighting.

Since 1974 the official editions of the Kentucky Revised Statutes have repeatedly certified that the definition of the word “animal,” adopted by the 1974 legislature as KRS 446.010(2), has remained unchanged. However, a March 1990 Legislative Research Commission notation to the statute states as follows:

The definition of “animal” contained in subsection (2) of this section does not reflect the amendatory language contained in Senate Bill 263 of the 1980 Regular Session of the Kentucky General Assembly because the 1980 Senate Journal indicates that Senate Bill 263 was vetoed by Governor John Y. Brown, Jr., on April 9, 1980, and recommitted by action of the Senate to its Committee on Appropriations and Revenue on April 14, 1980. Senate Bill 263 proposed to change subsection (2) to read as follows: “ ‘Animal’ includes every warmblooded living creature except birds and human beings;”. By a letter dated March 16, 1990, the Attorney General has informally opined that Governor Brown’s veto of Senate Bill 263 was not timely; that letter has exhibits showing that the bill was received by the Governor on March 28, 1980, and that his veto was received by the Senate Clerk on April 10, 1980.

Shortly after this prosecution for cockfighting was commenced, appellant filed a motion to dismiss the charges on the ground that in 1980, KRS 446.010(2) was amended by SB 263 to except all birds from the definition of “animal” set forth in KRS 446.010(2), and that the governor’s attempted veto of the bill was untimely and invalid. Hence, appellant urged that he could not be prosecuted for cruelty to animals in the second degree for having engaged in cockfighting activities. The district court sustained appellant’s motion and dismissed all pending charges. On appeal, the district court’s ruling was reversed by the circuit court. We granted discretionary review.

Because appellant has failed to adduce sufficient competent proof to establish whether the governor’s veto of SB 263 was untimely, we need not address the merits of his contention regarding this issue. Attached to appellant’s motion to dismiss were photocopies of SB 263, of certificates of the chief clerk of the senate regarding the dates upon which SB 263 was allegedly delivered to and received from the governor’s office in 1980, and of a receipt for the bill from the governor’s staff. Appellant also attached copies of the governor’s veto message, of the 1980 senate journal relating to the veto, and of the attorney general’s March 16, 1990, opinion which was referred to in the legislative research commission note set forth above. The commonwealth objected to the documents which appellant attached to the motion to dismiss, asserting that the documents were not competent proof regarding the critical fact which appellant claimed they established, i.e., that the governor’s veto of SB 263 was untimely. Although the district court disagreed with the commonwealth’s argument, the circuit court reversed that decision. On appeal, in support of the circuit court’s decision the commonwealth again argues that insufficient competent proof exists to support the district court’s finding that KRS 446.010(2) was validly amended in 1980 because the governor’s attempted veto of the bill was untimely. As we agree with the commonwealth’s argument in this vein, we affirm the circuit court’s decision.

KRS 7.138 states in pertinent part as follows:

(l)(a) When any complete official edition of the statutes is published, the director of [51]*51the Legislative Research Commission shall issue and the reviser of statutes shall attest to a certificate that the edition contains all statute laws of the Commonwealth of a general nature except those omitted pursuant to KRS 7.134, that the edition has been prepared in a manner acceptable to the Legislative Research Commission so as to insure fidelity of its text with the enrolled bills of the General Assembly, and that, with any changes in form permitted by KRS 7.136 having been incorporated, the sections in the printed edition are correctly printed. A similar certification for each new volume, unit, supplement, or supplemental pocket part of an official edition shall be made, but it need not recite that the volume, unit, supplement, or supplemental pocket part contains all general statute laws. All copies of the edition shall contain a printed copy of the certificate.
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(3) In any judicial or administrative proceeding, the text of any codified Kentucky statute which is submitted or cited by a party or upon which the court or administrative officer or body relies shall be that text contained in an official edition of the Kentucky Revised Statutes so designated pursuant to KRS 7.132 and bearing the certification provided for by subsection (1) of this section.

Given these statutory mandates, the courts of this state are bound to rely upon the text of KRS 446.010

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Cite This Page — Counsel Stack

Bluebook (online)
889 S.W.2d 49, 1994 Ky. App. LEXIS 146, 1994 WL 700860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/munn-v-commonwealth-kyctapp-1994.