Appeal from Circuit Court, Knox County
Henson Vs. Commonwealth
ACTION: Reversed, with directions
HENSON
v.
COMMONWEALTH
May 31, 1912
Frank Henson was convicted of manslaughter, and he appeals. Reversed, with directions to set aside judgment, and for further proceedings as directed.

MILLER,
The appellant, Frank Henson, a minor, having been tried in the Knox circuit court for the murder of James Gray, and found guilty of the offense of manslaughter, moved that he be committed to the House of Reform during his minority.
Kentucky Statutes provides, in part, as follows: "That any and all juvenile or first offenders of the age of 21 years or under committing any crime whereby punishment in the state prison on or school of reform is contemplated, shall be sentenced by court of jurisdiction to the House of Reform, and commitment and method of conveying said offenders thereto shall be the same as to the state penitentiaries." Evidence having been heard by the court upon the questions of appellant's age and his former offense, the court entered the following judgment. "This cause being before the court on motion to commit the defendant to the reform school, and the court, having heard the evidence for both plaintiff and defendant, and having considered same, finds that the defendant has been heretofore convicted of shooting at random upon the public highway, and is not, therefore, a first offender. And the court finds that the defendant is less than 21 years of age, and said motion to commit to the House of Reform is, therefore, overruled, to which the defendant excepts." From an order overruling appellant's motion for a new trial he prosecutes this appeal, and asks that the judgment above set out be reversed, and his motion sustained.

It will be noticed the judgment finds that Henson was less than 21 years of age, but does not expressly determine his age. The preponderance of the evidence, however, shows that appellant was born March 8, 1896, and that he is therefore slightly more than 16 years of age. For the purpose of executing the judgment, we fix his birth on March 8, 1896. The evidence further shows that Henson had theretofore been convicted of a misdemeanor, which consisted of shooting at random upon the public highway, for which he had been fined $75. The question, therefore, for determination, is this: Is the commission of a misdemeanor such a "crime" as will deprive the appellant of the benefit which the statute affords to first offenders by enabling them to be sent to the school of reform instead of to the penitentiary? In speaking of crimes and misdemeanors, Blackstone says: "A crime or misdemeanor is an act committed, or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemeanors, which, properly speaking, are mere synonymous terms; though in common usage the word 'crimes' is made to denote such offenses as are of a deeper and more atrocious dye, while smaller faults and omissions of less consequence are comprised under the gentler name of 'misdemeanors' only." Kentucky Statutes classifies offenses as follows: "Offenses are either felonies or misdemeanors. Such offenses as are punishable with death or confinement in the penitentiary are felonies. All other offenses, whether at common law or made so by statute, are misdemeanors." A strict interpretation of the term "crime" would include misdemeanors; but, as used in the section of the statute first above quoted, the term "crime" clearly means a felony, since it speaks of a crime for which punishment in the state prison is contemplated. Only felonies are so punished; and, under Kentucky Statutes, shooting on a public highway is made a misdemeanor, punishable by fine and imprisonment in the county jail. The question above propounded must therefore be answered in the negative.

The judgment of the circuit court is reversed, with instructions to set it aside, and enter an order in conformity with this opinion.



    

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