202 Ky. 782 | Ky. Ct. App. | 1924
Opinion of the Court by
Reversing.
On March 10, 1923, the grand jury of Bell county returned an indictment against appellant and defendant therein, Phoebe Madden, charging her with the offense
A sufficient answer to ground (1) is that the record fails to show that any demurrer was ever filed to the indictment; but notwithstanding that fact, if it failed to charge a public offense, it was the duty of the court to arrest the judgment and unless resubmitted or otherwise cured, defendant could not be tried and punished thereunder. We, however, find no fault with the indictment in this case. In its entirety (omitting caption and signature) it says: “The grand jury of Bell county, in the name, and by the authority of the Commonwealth of Kentucky, accuse Phoebe Madden of the crime of unlawfully and wilfully having sexual intercourse with a male child under the age of eighteen years, not her husband, committed in manner and form as follows, viz: The said Phoebe Madden in the state and county aforesaid, and on the — day of —, 1923 and within •— months before the finding of this indictment, did unlawfully have carnal knowledge of and sexual intercourse with Charlie Baker, a male person who was at the time óf such acts under the age of eighteen years, against the peace and dignity of the Commonwealth of Kentucky.”
Prior to the amendment of 1922, which took effect on the 13th day of June of that year, the offense could only be committed by a male upon a female who was under the prohibited age, which was then sixteen years or an idiot; but the amendment, in the generic offense which it described, raised the age of consent to eighteen years and left out entirely the prohibition as to committing the act upon the body of an idiot, and also made
The generic offense, as described in the amendment, was couched in these words: “Every male person who shall carnally know, with her consent, any female child, not his wife, under the age of eighteen years, and every female person who shall carnally know any male child under the age of eighteen years, not her husband, shall be punished as follows.” That language is followed by a number of subsections relating to the- punishment, and prescribing it according to the age (below the maximum of eighteen years) of the prosecuting witness, and likewise measuring the punishment (subsection 5) according to the age of the offender. The crime denounced by the statute, without any aggravating facts increasing the punishment was specifically charged in the indictment and under the well known rules of criminal practice, adhered to by this court, the defendant could be convicted and punished for the crime stated in the indictment, and all other ones growing out of the same act of a lower degree; an illustration of which is, that under an indictment for murder the defendant may be convicted of all degrees of homicide lower than that crime, notwithstanding the particular elements of the lower degree or degrees are not set out or charged in the indictment. See Rose’s 'Criminal Law, vol. 1, section 295; Evans v. Commonwealth, 79 Ky. 414, and numerous other domestic cases which might be cited continuing up to the present time. Since, therefore, the indictment charged the offense described in the statute, it charged a public one and was not demurrable, although it was not tested in that manner. We, therefore, conclude that ground (1) is without merit.
Subsections 1 and 2 of the amendment provide- for an increased punishment of the offender according to the age of his "victim and in fact created higher crimes' than the one contained in the statutory definition of the generic one. Subsection 1 prescribed the- punishment of “imprisonment in the state penitentiary for not less than twenty years nor more than fifty years, or by death, in the discretion of the jury,” if the victim was below twelve years of age; while subsection 2 prescribed a punishment of “imprisonment in the state penitentiary
In the second edition of Bishop’s New Criminal Procedure, vol. 1, chapter VI, there is a most learned discussion upon the necessity of charging in the indictment the elemental facts that affect the degree of punishment; and in section 77 the learned author says: “The doctrine of this chapter is, that every wrongful fact, with each particular modification thereof, which in law is required to be taken into the account in determining the punishment upon a finding of guilty, must be alleged in the indictment;” and in the following- subsection he says: “This doctrine is fundamental.” In subsection 1 of section 81 it is stated that “The rule, which our jurisprudence has adopted from natural reason and justice, is that with which we began, namely, that the indictment must allege every fact and modification of fact legally essential to the punishment to be inflicted; ’ ’ and in subsection 2 of the same section it is stated that “This doctrine pervades the entire adjudged law of criminal procedure. It is made apparent, not alone by a single case, but by all the eases.” He then considers by way of illustration a number of specific crimes, both statutory and at common law, and announces the universal application of the rule, and points out the distinction between
Since, therefore, it is incompetent, as we have seen, to convict the accused of a higher degree of the offense than the one with which he is charged in the indictment against him, it was error for the court in this case to submit to the jury in its instructions the higher punishment of confinement in the penitentiary for “not less than five years nor more than twenty years,” as prescribed in subsection 2 of the amendatory act, because that punishment is of a much higher degree than if the prosecuting witness had been just below eighteen and above sixteen years of age, and which is, as we have seen, confinement in the penitentiary not less than two years nor more than ten years. The defendant in this case was prejudiced by the giving of that instruction, since the minimum punishment for the offense charged in the indictment (in the absence of an allegation of the facts increasing the punishment which in this offense was the
Defendant was also entitled, under the provisions of sections 122 and 124 of the Criminal Code, to require that the indictment against her should contain the particular circumstance of the offense with which she was charged and for which the 'Commonwealth proposed to punish her in such ordinary and concise language as to enable her to understand and know what was intended, so as to afford her an opportunity to prepare for the trial and to disprove, if she could, any of the issues of fact entering into her guilt or degree of punishment, and the indictment in this case did not afford her that information concerning any degree of the offence except that contained in the first section of the amendatory act. It is, therefore, apparent that the court erred in submitting to the jury the punishment prescribed in subsection 2 of the amendatory act.
The instruction authorized the jury to find the defendant guilty if it believed beyond a reasonable doubt that the offense was committed at any time prior to the finding’ of the indictment, which, as a general rule, is the correct practice in felony cases where no limitation is provided beyond which the prosecution can not be maintained. But, in the instant case, the prosecuting witness said that the offense was committed some time in the summer of 1922. The amendatory act creating the offense so far as the female perpetrator is concerned did not take effect until the 13th day of June, 1922, and from the broad statement of the prosecuting witness as to when the crime was committed, it might have been done prior to that date which, if true, defendant was guilty of no offense except either fornication or adultery; The instruction, therefore, should have required the jury to believe that the offense was committed at some time subsequent to the taking effect of the amendatory act, and because it failed to do so it was also erroneous.
Wherefore, the judgment is reversed with directions to grant the motion for a new trial and for proceedings consistent with this opinion.