Thornberry v. Commonwealth

Court of Appeals of Kentucky (pre-1976)

Thornberry v. Commonwealth

295 S.W. 164, 220 Ky. 328, 1927 Ky. LEXIS 534

CourtCourt of Appeals of Kentucky (pre-1976)

DecidedMay 31, 1927

StatusPublished

This text of 295 S.W. 164 (Thornberry 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.

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Thornberry v. Commonwealth, 295 S.W. 164, 220 Ky. 328, 1927 Ky. LEXIS 534 (Ky. 1927).

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Opinion

OPINION OF THE COURT BY

CHIEF JUSTICE CLAY—

Reversing.

Roy Thornberry was arrested on a warrant from the police court of Louisville charging him with being “drunk in a public place.” On a trial in that court he was found guilty and appealed to the circuit court, where the jury gave him a jail sentence and revoked his automobile license for a period of 1 year. To reverse the judgment which conformed to the verdict, this appeal is prosecuted.

The punishment for being drunk in a public place is a fine of not less than $10 nor more than $100, or imprisonment for not less than 5 nor more than 30 days, or both such fine and imprisonment. Section 2554a-24, Kentucky Statutes, Baldwin’s 1926 Supplement.

For operating a motor vehicle while intoxicated, the punishment for the first offense is a fine of not less than $100 nor more than $500 and the revocation of the defendant’s license to operate a motor vehicle for a period of one year. For the second and- each subsequent offense, the punishment is a fine of not less than $100 nor more than $500 and confinement in the county jail for not less than 30 days nor more than 6 months. Section 2739g-34a, Kentucky Statutes, Baldwin’s 1926 Supplement.

Instruction No. 1, authorizing appellant’s conviction for the offense of being drunk in a public place, fixed the punishment in accordance with section 2554a-24, supra, but, by inadvertence, a subsequent instruction prescribing the form of the verdict authorized the jury not only to impose the punishment fixed by that statute, but to revoke appellant’s license to operate a motor vehicle for one year, and such was the verdict of the jury. The revocation of the offender’s license to operate a motor vehicle is a part of the punishment for operating a motor vehicle while intoxicated. It is not a part of the punishment for *330 being drunk in a public place. Tbe warrant did not charge appellant with operating a motor vehicle while intoxicated. The only charge was being drunk in a public place. In cases like this, the statutory punishments are exclusive. One cannot be convicted of the violation of a particular statute and punished under another statute relating to an entirely different offense. It follows that the instruction authorizing the revocation of appellant’s license was erroneous.

Judgment reversed and cause remanded for a new trial consistent with this opinion.

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OPINION OF THE COURT BY

CHIEF JUSTICE CLAY—

Reversing.

Roy Thornberry was arrested on a warrant from the police court of Louisville charging him with being “drunk in a public place.” On a trial in that court he was found guilty and appealed to the circuit court, where the jury gave him a jail sentence and revoked his automobile license for a period of 1 year. To reverse the judgment which conformed to the verdict, this appeal is prosecuted.

The punishment for being drunk in a public place is a fine of not less than $10 nor more than $100, or imprisonment for not less than 5 nor more than 30 days, or both such fine and imprisonment. Section 2554a-24, Kentucky Statutes, Baldwin’s 1926 Supplement.

For operating a motor vehicle while intoxicated, the punishment for the first offense is a fine of not less than $100 nor more than $500 and the revocation of the defendant’s license to operate a motor vehicle for a period of one year. For the second and- each subsequent offense, the punishment is a fine of not less than $100 nor more than $500 and confinement in the county jail for not less than 30 days nor more than 6 months. Section 2739g-34a, Kentucky Statutes, Baldwin’s 1926 Supplement.

Instruction No. 1, authorizing appellant’s conviction for the offense of being drunk in a public place, fixed the punishment in accordance with section 2554a-24, supra, but, by inadvertence, a subsequent instruction prescribing the form of the verdict authorized the jury not only to impose the punishment fixed by that statute, but to revoke appellant’s license to operate a motor vehicle for one year, and such was the verdict of the jury. The revocation of the offender’s license to operate a motor vehicle is a part of the punishment for operating a motor vehicle while intoxicated. It is not a part of the punishment for *330 being drunk in a public place. Tbe warrant did not charge appellant with operating a motor vehicle while intoxicated. The only charge was being drunk in a public place. In cases like this, the statutory punishments are exclusive. One cannot be convicted of the violation of a particular statute and punished under another statute relating to an entirely different offense. It follows that the instruction authorizing the revocation of appellant’s license was erroneous.

Judgment reversed and cause remanded for a new trial consistent with this opinion.

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295 S.W. 164, 220 Ky. 328, 1927 Ky. LEXIS 534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thornberry-v-commonwealth-kyctapphigh-1927.