
    Commonwealth vs Jefferson, &c.
    Error to the' Trigg -Circuit.-
    Indictment.
    
      Case 64.
    Prior to 1841 this Court had no jurisdiction to revise the decisions of the Circuit Court in prosecutions for misdemeano rs, unless in cases where fine is the only punishment.
    
      Misdemeanors. Appeals and writs of error.
    
    
      April 7.
    
   Judge Bkeok

delivered the opinion of the Court

It was held in Duncan vs The Commonwealth, (6 Dana, 295,) that this Court had no ievisory jurisdiction over a prosecution for an affray, upon the ground- that a part of the punishment for the offence was imprisonment. The punishment, at that .time, both at common law and by statute, was fine and imprisonment. Since that time the Legislature has-placed it in the discretion'of the-jury to award either fine or imprisonment, or both, as the punishment for an affray;'(3 Stat. Laws, 520.) That act, however, does not'make the offence exclusively penal, and punishable only by,a pecuniary fine. Whether the punishment in this ease, had it gone to the jury and the defendant had been found guilty, would have been fine or imprisonment, or both, cannot be determined. As the offence, therefore, cannot be regarded as punishable by a pecuniary fine only, we think this Court has no jurisdiction in this case.

By the statute of 1841, an appeal ot writ of error is allowed to defendants but not to the Commonwealth.

Cates, Attorney General, for Commonwealth.

The act.of 1841 gives the defendant in a prosecution for an affray, a right to appeal or prosecute a writ of error, but the right is not extended to the Commonwealth.

The writ of error in this case, therefore, for want of appellate jurisdiction, is dismissed.  