Gross v. Commonwealth , 1956 Ky. LEXIS 259 ( 1956 )

HOGG, Judge.

Don Gross appeals from a judgment of the Fayette Circuit. Court wherein he was convicted under a warrant charging him with the offense of selling beer without a license, in violation of KRS 243.040, and his punishment fixed at a -fine of $200 and imprisonment in the county jail for a period of six months. He was first -convicted in a justice of the peace court and had appealed to the circuit court. As grounds for reversal, he urges (1) the court was without jurisdiction to try him on the charge of selling beer,;without a license, and (2) the evidence was insufficient to sustain the verdict.

In considering the first ground urged for reversal, it will be necessary to: review certain .steps taken and the procedure had in the justice.court because, it is claimed, the justice court;judgment was wholly,.without foundation and void, and consequently the circuit court had no jurisdiction to try the case under the warrant which was brought to that court on appeal.. .On November 7, 1954, James Gorham made, and there was filed before the justice of the peace, an affidavit stating .that Don Gross had, on November 6, -committed the offense of “selling beer to .minors.” Upon the filing of the affidavit,- a warrant issued for Gross charging him with the pífense of selling beer to minors. He was arrested and produced in court, and on November 29 tried by the justice of the peace, sitting as a trial judge. After all the evidence had been introduced and heard, the justice determined that the evidence' Wás’ insufficient to convict' Gross of the offense of selling beer to minors, '" but "rendered a judgment convicting him of’ an entirely different offense; namely, selling beer without a license, in violation of KRS' 243.040, and fixed his punishment at a -fine of $200. The justice then ordered that the warrant be changed to read that the offense charged was selling beer without a license, to conform to the judgment of convictiofi. Thereafter, Gross perfected his appeal to the circuit court.

.The principal question is; Did the justice of the peace have the power to render the judgment he rendered in such a sum--mary manner, and to change the warrant to read and to accuse Gross of an .entirely different offense from that with which he was originally charged? If the answer is in the negative, then the entire proceeding in the justice court was coram non judice. If the justice had no right and was without power to make the substitution in the warrant after the trial, and was without jurisdiction to render the judgment he did render, then it seems the conviction was void and the circuit court was without jurisdiction to try the case. Klyman v. Commonwealth, 97 Ky. 484, 30 S.W. 985; Ritter v. Bruce, Ky., 239 S.W.2d 449.

In 14 Am.Jur., Criminal Law, section 215, it is said:

“ * * * To give a magistrate or justice of the peace jurisdiction over the person of anyone charged 'with the violation of the criminal law, the first step necessary is the filing of a sworn complaint (information or oath) describing the offense and the person charged with its commission. A complaint filed afterward comes too late and does not relate back so as to confer jurisdiction at the time of the trial.” (Our parenthesis.)

Also in the same section we find this:

“ * * * Whether an inferior court has jurisdiction of a particular offense must be determined by the allegations of the complaint and not by the facts proved on the trial.”

In the case at hand, “no information on oath” or sworn complaint of any nature was filed or had before the changing of the warrant. Section 31 of the Criminal Code of Practice requires that a magistrate shall issue a. warrant for a person charged with the commission .of a public offense when from his personal knowledge, or from information given to him on oath, he shall be, satisfied that there are reasonable grounds for; believing the charge. However the provision of the Code that a warrant may be issued from the personal knowledge of the magistrate has been held unconstitutional because such provision- is in conflict with section 10 of the Constitution of Kentucky. In Clark v. Hampton, 163 Ky. 698, 174 S.W. 490, 491, it is said:

“And a warrant issued without .preliminary oath or affirmation is unlawful and insufficient to confer upon the .magistrate jurisdiction of the person of the accused.”

In 22 C.J.S., Criminal Law, § 403(3), at page 617, it is said:

“As a general rule -the amendment, • or the substituted warrant or complaint, must not change the nature of the offense or add a new or different offense.”

The Commonwealth argues that we have many times held that a warrant issued in a misdemeanor case may be amended. So it is. We have held it is allowable to amend a warrant where it is defective. But we have never held that a warrant can be changed after trial to set up an entirely different and distinct offense, as was done in this case. Undoubtedly, the defendant is always entitled to know in advance the specific charge against him in order to prepare his defense.

Without stopping to consider the constitutional question involved in such a course. of action as is manifested in this record, it is sufficient to say that there can be no precedent found for such judicial action. In the case of Commonwealth v. Adams, 92 Ky. 134, 17 S.W. 276, the defendant was indicted for forgery. The court, with the consent of the defendant, changed the charge in the indictment from forgery to obtaining goods under false pretense before any trial was had.- In deciding that the court had no right to' change the indictment, the court stated at page 277 of 17 S.W.:'

“ * . * * Such a .practice, were it lawful, would certainly not be, á desirable one. The law creates courts and defines their powers. Consent cannot authorize a judge to! do what dhe law .has not given him the power to do. The act of the court in this instance was not a mere irregular exercise of a power. If so, consent would have cured it. But it was an- act beyond' its power. It is the sole province of the grand jury, under our law, to find an indictment. It, and not -the court, must say upon what charge the party shall be arraigned. The grand jury had not accused the defendant of obtaining goods under false pretenses, but with the crime of forgery; and the judge had no power to assume its duties, and alter the charge as fixed-by it. There is a total want of power to thus act. Such a power is unknown to’ the law, and the act is not in conformity to the law of the land. * * * ”

The motive which prompted the justice of the peace in convicting Gross on a charge with which he had not been previously charged, and in changing the warrant as above stated, was’ doubtless good and intended to further the ends of justice; but such a practice is not to be approved where there is no authority in the law for it. We, therefore, are constrained to hold that the altered warrant was not legally issued; the judgment was wrongfully entered; no jurisdiction attached; and the entire proceedings were void.

It is obvious that since the justice of .the peace did not have jurisdiction, the circuit court could not acquire jurisdiction on the appeal. Further, under KRS 455.-080 a person charged with a misdemeanor may he tried on information or warrant in circuit court only where the maximum punishment for the offense is a fine of $100 and imprisonment of 50 days. Here, the maximum penalty provided for violation of either KRS 243.040 or KRS 244.080 exceeded those limits. It is apparent that even if the prosecution should be considered as one originating in the circuit court, such court would not have had jurisdiction to proceed by warrant but must proceed by indictment under section 9, Kentucky Criminal Code. Singleton v. Commonwealth, 306 Ky. 454, 208 S.W.2d 325.

Since we have reached the conclusion we have, it is unnecessary to consider ground two urged on this appeal.

The judgment is reversed for proceedings not inconsistent with this opinion.