145 Ky. 627 | Ky. Ct. App. | 1911
ObiNioN of the Court' by
Reversing.
The appellant was indicted for unlawfully carnally knowing Ida Rule, an infant female under the age of sixteen years. The indictment was returned at the March term of the Graves Circuit Court' in 1911, and charged in the usual form that the appellant in the county of Graves, in March, -1911, and before the finding df the indictment, did unlawfully and carnally know Ida Rule, a female under the age of sixteen years. ' In Juné, 1911, he was tried under this indictment, found guilty, and sentenced to a term of eleven years in the State penitentiary. A reversal of the judgment is asked for alleged error of the trial court in respect to the instructions and the evidence.
On the trial, two witnesses testified that appellant had carnal intercourse with Ida Rule, who it is conceded was under sixteen years of age, in February or March, 1910. Other witnesses testified that he had carnal intercourse with her in July and September, 1910.
The court overruled motions made by counsel for the appellant to require the attorney for the Commonwealth to elect which- one of the crimes shown by the evidence he would rely on to secure a conviction; and also failed to admonish the jury as to the effect of the evidence introduced to show more than one act of carnal intercourse. The court instructed the jury that if they believed beyond a reasonable doubt that in Graves County, before the finding of the indictment, the appellant unlawfully and carnally knew Ida Rule, a female under the age of sixteen years, they should find him guilty as charged in the indictment and fix his' punishment at confinement in the State penitentiary' for a period of time-not less than ten nor more than twenty years. The court also gave the usual instruction upon the subject of reasonable doubt.
A defendant in a case like this has the right to be advised before the trial is begun of the particular act that the Commonwealth will depend on to secure his conviction, and he should not be tried for several acts, each in itself a separate and distinct offense. When, however, the Commonwealth has selected a particular act that it will go to trial on, it may then as corroborative of this act show other similar acts within a reasonable time before or after the main transaction. This view of the law is so fully set forth in Smith v. Commonwealth. 109 Ky., 685; as well as in People v. Flarity, 162 N. Y., 532, 57 N. E., 73, that it does not seem necessary to do more than refer to these cases. For the error of the trial court in not requiring the Commonwealth to elect, and in ref us
The question presented by counsel in respect to the indeterminate sentence law, will not arise on another trial, as the court in the instruction upon this subject will be controlled by the date of the crime selected by the Commonwealth to go to trial on.
Wherefore, the judgment is reversed, with directions for a new trial in conformity with this opinion.