80 S.W.2d 540 | Ky. Ct. App. | 1935
Reversing.
On May 8, 1934, the grand jury of Madison county returned an indictment accusing Foster Dickerson of the crime of seduction of an infant female under promise of marriage committed as follows:
"That said Foster Dickerson on the 8th day of May, 1934, in the county aforesaid and before the finding of this indictment, did unlawfully, wilfully and feloniously, under promise of marriage, seduce and have carnal knowledge of and sexual intercourse with. Mildred Hall, a female under 21 years of age, against the peace and dignity of the Commonwealth of Kentucky."
The defendant's demurrer to the indictment was first overruled. Thereupon he moved for a bill of particulars, which motion was sustained, and the commonwealth avowed that the act complained of was committed on July 17, 1933. The commonwealth then introduced its testimony, and at the conclusion thereof the defendant renewed his demurrer to the indictment. The demurrer was then sustained and the indictment was dismissed. The commonwealth appeals for the purpose of having the law certified.
Section 129, Criminal Code of Practice, reads:
*448"The statement in the indictment, as to the time at which the offense was committed, is not material further than as a statement that it was committed before the time of finding the indictment, unless the time be a material ingredient in the offense."
Section 1138, Kentucky Statutes, requires that, with certain exceptions, prosecutions for misdemeanors shall be commenced within one year after the offense was committed. That being true, time is material, and it is the settled rule that an indictment for a misdemeanor should allege that the offense was committed within one year before the finding of the indictment, or should fix the date of the offense within that time. Patrick v. Commonwealth,
Prosecutions for felony are not barred by lapse of time "unless otherwise specially provided." Section 1138, Kentucky Statutes. With respect to such felonies, all that is necessary is to allege or state facts showing that the offense was committed before the finding of the indictment. Criminal Code of Practice, sec. 129; Gratz v. Commonwealth,
Wherefore, this Opinion is certified as the law.