
    Henson v. Commonwealth.
    (Decided May 31, 1912.)
    Appeal from Knox Circuit Court.
    1. House oí Reform — Who Not Deprived of Benefit of Statute.— ' Under section 2095 (19a) of the Kentucky Statutes, which provides that juvenile or first offenders of the age of twenty-one years or under, .who commit a crime, the punishment of which is confinement in the State prison or School of Reform, shall1 be sentenced to the House of Reform, a person under the age of 21 .years, who stands convicted of manslaughter, and who has theretofore committed a misdemeanor by shooting at random upon the ‘ public highway, is not thereby deprived of the benefit of the ' statute.
    
      2. House of Reform — To Deprive First' Offender of — Crime Must be Felony. — A “crime” which will deprive a juvenile or first offender under tbe age of twenty-one years of tbe right to be confined in the House of Reform instead of the penitentiary, under section 2095 (19a) of the Kentucky Statutes, must be a felony, and not a mere misdemeanor.
    HIRAM H. OWENS, S. T. STEELE and H. C. FAULKNER, JR., for appellant.
    JAMES GARNETT, Attorney General, M. M. LOGAN, Assistant Attorney General for appellee.
   Opinion of the Court by

Judge Miller —

Reversing

The appellant, Prank 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.

• Section 2095 (19a) of the 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 Stale Prison or School of Reform is contemplated, shall be sentenced by Court of Jurisdiction to the Plouse 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 twenty-one years of age, and said motion to commit to the Plouse of Reform is, therefore, overruled, to which the defendant excepts.”

Prom 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.

Pt 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 horn 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 hirth 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 Eeform 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.” 4 Comm., 5.

Section 1127 of the 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. Under section 1127 only felonies are so- punished; and, under section 1308 of the 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.

In Washington v. Commonwealth, 143 Ky., 602, we held that the foregoing provision of the statute requiring confinement in tlie House of Reform of minor offenses is mandatory, and that the trial court was without power to deny it. That ruling was followed in Calico v. Commonwealth, 145 Ky., 647, where we further said that it was the duty of the trial court, whenever the facts brought the case within the terms of the statute, to mate an order directing the offender to be transferred to the House of Reform, there to be detained until he shall have reached his majority, and then returned to the penitentiary to serve out the remainder of the term of imprisonment. It follows, therefore, that appellant’s motion should have been sustained.

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