290 S.W. 511 | Ky. Ct. App. | 1927
Reversing.
The appellant, Harrison Hunley, was indicted in the Pike circuit court charged with the offense denounced by section 1155 of the Kentucky Statutes as amended by chapter 17, Session Acts, 1922, page 65, commonly known as the "Age of Consent" statute. At his trial he was convicted and punished by confinement in the state penitentiary for two years. His motion for a new trial was overruled and he has appealed, and his counsel urge a number of grounds for a reversal of the judgment, but none of which do we regard as sufficiently material to merit our consideration except (1), insufficiency of the indictment; (2), erroneous instructions based on such insufficiency, and (3), incompetent evidence introduced by the Commonwealth over defendant's objections; and which grounds we will consider in the order named.
1. Grounds (1) and (2) are in reality directed to the same complaint and they will be disposed of together. Prior to the 1922 amendment the statute read: "Whoever shall unlawfully carnally know a female under the age of sixteen years, or an idiot, shall be confined in the penitentiary not less than ten nor more than twenty years." The amendment increased the maximum age of the victim from 16 years to 18 years and then proceeded to enact degrees of punishment measured by the respective ages of both victim and perpetrator. It also for the first time provided punishment for a female perpetrator and expressly enacted that the victim should not be the spouse of the perpetrator; and one objection to the indictment is that it did not charge that Carry Hall, the victim, in this case, was not the wife of defendant, and which objection we think is well taken. The offense is purely a statutory *677
one, and the rule is universal that in the accusatory paper charging such offenses the elements which the statute enacts as descriptive of the offense should be charged. We are aware that in the case of Commonwealth v. Landis,
The indictment in this case, omitting caption, signature and endorsements, say: "The grand jury of Pike county, in the name and by the authority of the Commonwealth of Kentucky, accuse Harrison Hunley of the crime of carnally knowing and having sexual intercourse with a female under the age of 18 years, committed in manner and form as follows, viz.: The said Harrison Hunley, on the 8th day of October, 1924, in the county aforesaid, did unlawfully, willfully, and feloniously carnally know and have sexual intercourse with Carrie Hall, who was then and there a female under the age of 18 years at the time, against the peace and dignity of the Commonwealth of kentucky." It will be observed that it follows strictly section 1155supra, as it was before the amendment, except it charged the maximum age of the female victim as contained in that amendment (18 years) instead of the maximum age (16 years) as contained in the former statute.
The case of Hewitt v. Commonwealth,
2. Under ground (3) a number of objections to evidence are urged, and various items of testimony are assailed, but none of which do we consider of sufficient materiality to merit our consideration except that relating to the introduction of the school census to prove the age of Carry Hall, the victim. That testimony was furnished by Bessie Riddell Arnold, and we insert her examination in chief on that point, and it was: "Q. Do you hold some official position in Pike county? A. Yes, sir, deputy county court clerk. Q. As such are you the custodian *679 of the school census record kept in that office? A. Yes, sir. Q. Have you a record showing the day and year that this prosecuting witness Carry Hall was born? A. Objected to; overruled; except. Yes, sir. Q. What is that record? A. Of date, August 1st, 1909." On her cross-examination it was developed that she did not know who made and returned the list to the county court clerk's office, nor by whom it was made or who furnished the information to the list taker or enumerator at the time it was made; although it later appears that at the time the list was taken in 1920, Carry Hall was living with an uncle and not with her mother. So that, the presumption would be that the uncle furnished the information to the enumerator, but whether so or not it conclusively appears that neither parent did so.
We are aware of the rule that under some circumstances and conditions a public record may be introduced to establish the facts it contains when it is shown that it was made in the due course of official duties by a person upon whom the law enjoined the duty to do so, and when the specific fact sought to be established was one of the primary purposes in requiring the record to be made. Hence, some courts admit as evidence under certain circumstances the reports of the federal census enumerators when duly authenticated to prove facts which it was the specific and one of the primary duties of the enumerator to make and was one that the government purposed to make and to preserve for general public information. Such is the case of Priddv v. Boice,
To the same effect is the case of Battle v. Tallman,
In the case of Bertram v. Witherspoon,
In volume 2 of Jones on Evidence, 1913 edition, the learned author in chapter 10, beginning with section 297, discusses the doctrine of hearsay evidence, and as is well known he states in section 312 of the same chapter that hearsay evidence to prove pedigree constitutes one of the exceptions to the rule denying the competency of such *681 evidence. In the latter section his text says, inter alia: "In such cases (proof of pedigree) hearsay evidence of declarations of persons who from their situation were likely to know is admissible when the person making the declaration is dead. . . . The rule of admission is therefore restricted to the declarations of deceased persons who were related by blood or marriage to the person, and therefore interested in the succession in question." In the same section he reiterates both prerequisites to the admission of such testimony, i. e., that the declarant must be dead at the time the testimony is offered and must have sustained such relation to the person whose pedigree is under investigation as to raise the presumption that they possessed knowledge of the fact. It is also stated in that section that the fact of age comes within the pedigree doctrine, and in section 315 the text says: "Other illustrations of written declarations which have been admitted as to questions of pedigree are entries made in almanacs, charts of pedigree, school census, or other books or papers which mention births, marriages and deaths." The Witherspoon case is cited in the note as authority for classifying school census as coming within pedigree declarations, and which case is also reported in 1912A Annotated Cases 1217.
We do not mean to be understood at this time as adopting without qualification the rule that school census reports possess no higher degree of verity than strictly hearsay pedigree declarations, and our reference to the text of Mr. Jones is for the purpose of showing that as distinguished an authority as he placed such reports in the latter classification, thus showing that he does not regard them of as high a dignity and probative force as a public record of a fact where accuracy is specifically enjoined on its maker and is the only purpose in requiring it, as is true in many such records. However, as a matter of common knowledge and of which we take judicial notice, the enumerators of the school census are chiefly concerned while performing their work to discharge the principal purpose that the legislature had in view in requiring such reports to be taken and made, which was that the list of school children within the particular territory shall not include any who do not come within the benefits of public education, i. e., who are under the minimum and over the maximum prescribed ages to receive the public school per capita. The chief public purpose *682 to be served in requiring such reports is to protect the state from paying per capita school funds contrary to the law, and which is only done whenever the pupils come within the prescribed minimum and maximum ages. Furthermore, it is a matter of like common knowledge that, although the statute (section 4449) requires the age of the enumerated pupil to be recorded, yet as a matter of practice that is done without much regard to its accuracy. The information furnished to the enumerator is frequently given by members of the family who do not know except from tradition the age of the listed pupil, and it is sometimes recorded by the enumerator himself from inspection or rumored information. Perhaps, more frequently than otherwise the parents, and especially the mothers, who, more than all others, are most competent to speak upon the subject, are never consulted. Under such circumstances it would indeed be of the greatest doubtful propriety to allow such records in and of themselves the weight of substantive testimony, and especially so in prosecutions where the liberty or the life of the defendant is dependent upon the fact of age sought to be established by the introduction.
Taking this case for illustration, the entire guilt or innocence of defendant depends altogether on the age of the victim, and upon that question the only evidence might be the census taken in the way hereinbefore indicated. Moreover, if he was above 21 years of age and the victim was under 12 years of age, then under subsection 1 of the amendment supra, he would be subject to a punishment of confinement in the penitentiary for not less than twenty nor more than fifty years, or by death; and each of those punishments might depend altogether on the question of age, and it in turn on the statements contained in the school census. If, as held in the Edwards case, such reports are not admissible as substantive testimony to prove age in an election contest case, a fortiori, would they also be incompetent to prove the fact of age in a criminal prosecution where the life or liberty of a citizen was at stake, and it is our conclusion that such coveted rights should not be forfeited upon such unsubstantial and precarious proof. In view of the foregoing facts we have concluded that such reports, except for the purposes and under the circumstances hereinbefore stated, were not admissible, and the *683 court erred in admitting the testimony of the deputy county court clerk in this case.
It is also argued that in prosecutions under the statute proof of penetration is required, and the case of Nider v. Commonwealth,
There was also some proof by defendant in this case bearing upon the chastity of the prosecutrix and which should have been excluded. McCreary v. Commonwealth,
Wherefore, the judgment is reversed, with directions to grant the new trial and for proceedings consistent with this opinion.