116 Ky. 335 | Ky. Ct. App. | 1903
Opinion oe the court nr
Reversing.
The question for decision by this court upon this appeal is the sufficiency of the indictment wherein the appellee, Eddie Lowe, is charged with a violation of section 1154 of the Kentucky .Statutes of 1899, which reads as follows: “Whoever shall unlawfully carnally know a female, of and ■above twelve years of age, against her will or consent, or hv force, or whilst she is insensible, shall be guilty of rape, and punished by confinement in the penitentiary not less than ten nor more than twenty years, or by death in the discretion of the jury.’’ The indictment reads as follows: “The grand jury of the county of Green, in the name and by the authority of the Commonwealth of Kentucky, ac
It is insisted for appellee upon this appeal that the indictment is fatally defective for two reasons: First, because it does not charge that the defendant knew that the prosecuting wetness was insensible, in consequence of a drug having been administered to her; second, that the offense with which he is charged is not stated with sufficient certainty to apprise him of the specific crime for which he is to be prosecuted, in consequence of the use of the disjunctive “or” instead of the conjunctive “and” in the indictment. The certainty required by section 124 of the Criminal Code must be such as will apprise the defendant of the nature of the accusation, and enable him to plead the indictment and the judgment thereon in bar of any subsequent prosecution for the same offense. See Com. v. White, 18 B. Mon., 493; Com. v. Perrigo, 3 Metc., 5. The complaint that the indictment does not charge that the accused knew that Miss Paxton was incapable of giving con