
    Frost and Hays vs Commonwealth.
    Appeal prom the Owsley Circuit.
    
      Presentment. Jury trial. Evidence.
    
    Presentment. ■Case 77.
    
      June 5.
    'Caso stated.
    A defendant has no right to demand a trial by jury in a penal case unless the fine upon conviction exceeds £5, or is uncertain.
    Upon a joint presentment for adultery, the ad* missions of one nagafnst the
   Judge Geaham

delivered the opinion of the Court.

The plaintiffs in error, were presented by the Grand Jury, on a charge of having been guilty of adultery,

Upon pleading not guilty, they moved the Court for a trial of the facts by a jury. Their motion was overruled, and on hearing the evidence, the Judge imposed on each defendant a fine of five pounds.

It is insisted that the Court erred in overruling said ■motion- — -that the proof did not authorize the judgment, and that a new trial was improperly refused.

The law regulating proceedings in criminal and penal cases, secures to the accused the right of having the facts tried by a jury, and the amount of fine to be assessed by them, in cases where the fine to be imposed on the offending party is uncertain in amount, or exceeds five pounds. In other cases, upon the establishment of the defendant’s guilt, the Judge may assess the fine, without the aid or intervention of a jury.

The testimony fully sustained the charge of cohabitation. The witness proved that Frost had admitted that Hays was not his wife, and that he had then living a wife in Tennessee. He was very properly subjected to the penalty imposed by law on such offenders. The Court could not have done otherwise, under the proof.

Generally, the admissions of one party cannot be received in evidence against another. There is nothing in this case to make - the defendant, Hays, an exception to this general rule. There is no proof in the record, by confession or otherwise, that she was a married woman. There was no evidence, save his own admissions, that Frost was not a single man. His statements could not legitimately be used as evidence against her. As to said Hays, there was therefore no proof sufficient to justify the Court in subjecting her to a fine of five pounds.

Barnes for appellants; Johnson, Attorney General„ for Commonwealth.

.Wherefore, it is considered that the judgment as to said Frost be affirmed, and as to said Hays, it is. reversed and remanded, with directions to the Court below to award her a new trial.  