96 S.W.2d 1049 | Ky. Ct. App. | 1936
Affirming.
Hollie Meredith has appealed from a judgment sentencing *382 him to one year in the penitentiary for seducing Ola Bell under promise of marriage.
This crime was committed in the string of 1934. The appellant was then 22 years of age, is victim just 14, and as a result of their relations the birth of a child on April 5, 1935, thrust upon her while she was less than 15 years old that most unenviable social status of being neither wife or widow, maid or matron.
This girl testifies the appellant began to visit her along in March, 1934, and after that they agreed to marry and were going to marry that fall; that she believed he was going to marry her; that after their betrothment, and in April, 1934, the appellant wanted to have sexual intercourse with her, and she, because of their betrothment, permitted him to do so, and he had such with her upon a davenport in her father's home in Grayson county, Ky.; that she has never had intercourse with any other man; that she would not have permitted this but for his previous promise to marry her; that they repeated this act on three other occasions at the same place, the last occasion being in July, 1934; and that he never did marry her. A gruelling cross-examination of 26 pages did not weaken her testimony.
The appellant admits having had sexual intercourse with this girl twice, once upon this davenport and once elsewhere, but he says he obtained this favor without making her any promise of anything. He married another woman on November 9, 1934. Theirs is the only testimony about the principal elements of this crime. The jury believed her account of it and rejected his. It was for the jury to find which was true, and its verdict must stand if there be no merit in the grounds urged for reversal.
The defendant demurred to it because (a) it did not aver the victim was then, and for a reasonable time prior thereto had been, chaste and virtuous, and (b) because it was not averred that this seduction was accompanied and accomplished by a promise of marriage made at the time. *383
Ground (a) is without merit. All women are presumed to be chaste and virtuous, Wolfe v. Com.,
Ground (b) is equally without merit. The appellant relies on the opinion in Jordan v. Com.,
"We may, therefore, say that, looking to the evidence alone, there was sufficient to sustain the finding of the jury that the act of intercourse was committed under a promise to marry on the part of Jordan, and unless during the progress of the trial errors, prejudicial to the substantial rights of Jordan, were committed by the trial court, the judgment should be affirmed."
We reversed that judgment, but for another reason.
Appellant also relies on Garrison v. Com.,
The illness of wife did not prevent his attendance at the trial, so he was not hurt by that.
The appellant read to the jury the evidence of two of these absent witnesses as set out in his affidavit; as to one he had not shown proper diligence and why he did not read the other does not appear; hence we find no error in this.
She testified their betrothment had previously taken place. At one place she was asked when this agreement to get married was made, and she answered: "In April or June." At five other places in her subsequent testimony she states their agreement to marry was made before any act of intercourse occurred.
The appellant in his reply brief as well as in his original brief seizes on this answer, "In April or June," and strenuously argues this conclusively shows the marriage agreement was made after the intercourse occurred. All this was a question for the jury and was doubtlessly ably argued before them. This does not present such a state of fact as to require the court to direct the acquittal of the accused.
"If the jury believe from the evidence in this case to the exclusion of a reasonable doubt, that the defendant, Hollie Meredith, in this County and within four years next before the finding of the indictment herein, did unlawfully and feloniously, under and by reason of promise of marriage [if such promise there was] seduce and have carnal knowledge of said Ola Bell at her home in April, 1934, and that she was then and there a female under twenty-one years of age, and that the defendant failed and refused to marry her, then you should find the defendant guilty as charged in the indictment and fix his punishment at confinement in the penitentiary for a period of not less than one year nor more than five years in your reasonable discretion."
The appellant complains of the use of the expression, "in April, 1934." The court might have omitted that as well as the words, "At her home," but the use *386
of these expressions confined the jury to a definite time and place and in no way prejudiced the appellant. The appellant says the court erred by not defining seduction. In Berry v. Com.,
Instruction No. 2 in this case follows the instruction in Duggins v. Com.,
The judgment is affirmed.