Commonwealth v. Sizemore , 488 S.W.2d 685 ( 1972 )

CULLEN, Commissioner.

A prosecution was instituted in the Fay-ette Circuit Court against Jimmie Sizemore and Steve Sizemore, charging them with operating a coal mine in Clay County, Kentucky, without a license, in violation of KRS 351.175. That statute expressly provides : “Jurisdiction for such offenses shall lie in the Fayette Circuit Court.” It was the opinion of the judge of the criminal division of the Fayette Circuit Court, however, that the statute could not validly vest “jurisdiction” in the Fayette Circuit Court over a criminal offense committed in Clay County, in view of the right granted by Section 11 of the Kentucky Constitution, to a defendant, to he tried by an impartial jury of the “vicinage.” Accordingly, the judge entered an order declining to accept jurisdiction of the case and transferring it to the Clay Circuit Court. The Commonwealth has appealed from that order.

The contention of the Commonwealth is that the statute defines a two-part offense, one part of which is the failure to obtain a license from the Department of Mines and Minerals, whose office is in Fayette County; and, therefore, Fayette County is a proper “vicinage” since it is the place where part of the offense was committed.

We think the argument has no merit. See Kentucky Straight Creek Coal Co. v. Commonwealth, 304 Ky. 247, 200 S.W.2d 470. It is plain that the proscribed conduct is unlicensed mining'; the obtaining of a license has no significance apart from the carrying on of mining operations.

It is our opinion, however, for the reason hereinafter stated, that the circuit judge erroneously determined that the statute violates Section 11 of the Kentucky Constitution.

The penalty provided by the statute is a fine of not less than $100 nor more than $300. That puts the offense in the category of a “petty” offense. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491; Annotation 26 A.L.R.2d 916.

In District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843, it was held that an offense punishable by imprisonment up to 90 days or by a fine up to $300 was not within the class of offenses for the trial of which a jury might be demanded as a matter of right under the Sixth Amendment to the United States Constitution.

This court has held that the right of trial by a jury of the vicinage, granted by Section 11 of the Kentucky Constitution, does not apply to petty offenses. Houk v. Starck, 251 Ky. 276, 64 S.W.2d 565; City of Mt. Sterling v. Holly, 108 Ky. 621, 57 S.W. 491.

It is clear, therefore, that the statute here in question does not violate Section 11 of the Kentucky Constitution.

The judgment is reversed with directions that the Fayette Circuit Court entertain jurisdiction of the prosecution.

MILLIKEN, PALMORE and REED, JJ., concur;