312 Ky. 573 | Ky. Ct. App. | 1950
Affirming.
The grand jury of Knox County returned an indictment against Calloway G-ambrell and Ford Brown charging them with the crime of rape. On their trial they were found guilty of detaining a woman against her will, a crime denounced by KRS 435.110, and the punishment of each was fixed at confinement in the penitentiary for a term of two years. It is argued on this appeal that (1) the indictment is defective; (2) the evidence is insufficient to support the verdict; and (3) the instructions are erroneous.
The indictment was drawn under KRS 435.090, which fixes the punishment for any person who unlawfully carnally knows a female of and above 12 years of ■age against her will and consent. The indictment is criticized because it failed to state the ages of the parties, and that the female was not the wife of either of the defendants. As pointed out in Jones v. Commonwealth, 124 Ky. 26, 97 S. W. 1118, when the indictment fails to allege that the female upon whom the rape is committed is under 12 years of age it must be understood as meaning that she is above that age. Merriss v. Commonwealth, 287 Ky. 58, 151 S. W. 2d 1030. It was not necessary to allege in the indictment that the prosecutrix was not the wife of either of the defendants. The indictment alleged that the defendants unlawfully carnally knew the prosecutrix, and it was drawn in the language of the statute. This was sufficient. Nunley v. Commonwealth, 307 Ky. 274, 210 S. W. 2d 962; Commonwealth v. Congleton, 267 Ky. 22, 101 S. W. 2d 210; Stark v. Commonwealth, 169 Ky. 539, 184 S. W. 875.
The prosecutrix, Viola Brown, was 18 years of age at the kme the alleged offense was committed. She had lived all of her life in a remote section of Knox County about 25 miles from Barbourville, the County seat. During the winter of 1947-1948 she worked as a domestic in the home of Mr. and Mrs. Brice Cray, who lived on Laurel Branch of Big Stinking Creek five or six miles from the home of her mother. She testified that about noon on April 23, 1948, Ford Brown came to the Cray home and told her that her mother was ill and wanted her, and that he would take her to her mother’s home in
The court instructed the jury under KRS 435.090 and KRS 435.110 and on assault and battery. Appellants complain of Instruction No. 1 on rape because it permitted the jury to assess as punishment “confinement in the penitentiary for life without the privilege of parole.” This is one of the alternative punishments provided by the statute, and was properly incorporated in the instruction. Furthermore, appellants were not e'onvicted under the instruction on rape, but under an instruction on a lesser degree of that crime and they could n:ot complain even though the instruction on rape had been erroneous. Instruction No. 2 on the. offense of unlawfully detaining a woman against her will with intent to have carnal knowledge of her, which is a lesser degree of the crime of rape, was authorized by the evidence. Kitchen v. Commonwealth, 275 Ky. 564, 122 S. W. 2d 121; Burnam v. Commonwealth, 289 Ky. 312, 158 S. W. 2d 131. Under the evidence the jury might have believed the crime of rape was not completed, but there was evidence justifying the conclusion that appellants unlawfully detained the prosecuting witness with intention to have carnal knowledge of her. It was therefore proper to instruct on that offense. Hogue v. Commonwealth, 305 Ky. 298, 203 S. W. 2d 42.
Judgment is affirmed.