Lenahan v. Commonwealth
193 S.W.2d 163
Ky. Ct. App.
1946
Check Treatment

Opinion op the Court by

Van Sant, Commissioner

—Affirming.

Appellant was convicted of tbe common law crime of assault and battery, and sentenced to serve five years in tbe Campbell County jail. After tbe appeal was filed in tbis Court, tbe Attorney General moved tbe ‍​​​​​‌​‌‌​​​‌‌‌​​‌‌‌‌​​‌​​​‌‌‌‌‌​​​​​​​‌​‌​​‌​‌‌‍Court to strike from tbe record tbe purported bill of exceptions, because it bad never been filed in tbe Circuit Court. Tbe motion was passed to tbe merits, and is tbe first question for our determinatiоn.

Tbe trial was commenced on^tbe twenty-nintb day of March, 1945, and was concluded on tbe following day, which was Friday. Motion for a new trial was made on the fourth day of Aрril. Tbis motion was overruled, and an appeal to this Court was granted on tbe twentiеth day of April, 1945. Judgment was entered and appellant sentenced on tbe following day, ‍​​​​​‌​‌‌​​​‌‌‌​​‌‌‌‌​​‌​​​‌‌‌‌‌​​​​​​​‌​‌​​‌​‌‌‍towit, April 21, 1945. On tbe thirteenth day of June, a motion was filed and sustained to grant appellant sixty days beyond tbe original time fixed by law (June 20, 1945) in wbicb to prepare and file bis bill of exceptions. Tbe bill of exceptions, wbicb included tbe transcript of tbe bill оf evidence, was prepared, approved, and signed by the Trial *715 Judge on thе fifteenth day of August. The certificate of the Judge contained the direction thаt the bill be filed and made a part of the record without being spread on the order book; but this direction was never carried out, and the bill of exceptions has been filed in this Court only. Section 282 of the Criminal Code of Practice provides thаt the bill ‍​​​​​‌​‌‌​​​‌‌‌​​‌‌‌‌​​‌​​​‌‌‌‌‌​​​​​​​‌​‌​​‌​‌‌‍of exceptions in a criminal case shall be prepared, settlеd, and signed, as provided in civil cases. Section 334 of the Civil Code of Practicе provides that, when the bill of exceptions has been approved and signеd by the judge of the court, it shall be filed in the office of the clerk of the court within the time prescribed. In Tipton v. Commonwealth, 207 Ky. 685, 269 S. W. 1007, and in numerous other cases, including ‍​​​​​‌​‌‌​​​‌‌‌​​‌‌‌‌​​‌​​​‌‌‌‌‌​​​​​​​‌​‌​​‌​‌‌‍Quisenberry v. Commonwealth, 299 Ky. 390, 185 S. W. 2d 669, this Court has held that, unless there be an order of court showing the filing of thе bill of exceptions in the trial court, none of the matters necessary to be incorporated therein may be considered by this Court' on appeal. In resisting the motion to strike the bill, appellant contends .that the direction in the Trial Judge’s certificate that the bill be filed is a sufficient compliance with the Code. But in thus сontending, appellant loses sight of the fact that the certificate is not аn order of the Court, ‍​​​​​‌​‌‌​​​‌‌‌​​‌‌‌‌​​‌​​​‌‌‌‌‌​​​​​​​‌​‌​​‌​‌‌‍and the bill of exceptions may be filed only by order of cоurt, as we have observed. The provisions of the Code in this respect are mаndatory, and must be complied with, in order to give this Court jurisdiction to pass upon the еxceptions contained in the bill. Therefore, it is incumbent upon us to sustain the motion to strike the bill of exceptions from the record in this case; and which leaves for our consideration the sole question of the sufficiency of the indictment to charge a public offense.

The facts of the case paint such a sordid and revolting picture as to compel our refusal to cite them in detail. The crime charged in the indictment consists of acts of sexual perversion committed upon a six-year-old girl. It is contended that such conduct did not constitute the offense at common law; and since there is no specific statute on the subjеct, the indictment does not charge the commission of a public offense. In 6 C. J. S., Assault and Battery, Sec. 62, page 918, and 4 Am. Jur., pages 142 and 143, Sec. 27, it is said that an assault may сonsist of taking indecent liberties with a female *716 without her consent. Of course, a six-year-old child is incapable, in law, of giving her consent. In the same text, at pages 925 and 143, respectively, we find declarations to the effect that actual оr physical injury is not a necessary element of the crime of assault and battery. Lewd and lascivious conduct toward another of less aggravation than the аcts charged in this indictment was declared to be assault and battery in the following сases: Timmons v. Kenrick, 53 Ind. App. 490, 102 N. E. 52; State v. Johnson, 187 S. C. 439, 198 S. E. 1; and Levy v. State, 69 Ga. App. 265, 25 S. E. 2d 153. We are in accord with these authorities, and consequently hold the indictment charges a public offense.

The judgment is affirmed.