Amburgey v. Com.

• Decision Date: 24 March 1967
• Citation: 415 S.W.2d 103
• Parties: James R. AMBURGEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 103

415 S.W.2d 103

James R. AMBURGEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

March 24, 1967.

Rehearing Denied June 16, 1967.

Claude Asbury, Catlettsburg, Burnis Martin, Prestonsburg, for appellant.

Robert Matthews, Atty. Gen., Lloyd R. Cress, Asst. Atty. Gen., Frankfort, W. B. Arthur, Commonwealth's Atty., Ashland, for appellee.

MONTGOMERY, Judge.

James R. Amburgey was convicted of seduction and sentenced to confinement for one year. On appeal he urges that the crime of seduction cannot be committed upon a divorcee; that the trial court erred in the admission of testimony and in the instructions given to the jury; and that reversible error was committed by failing to have the grand jury proceedings reported.

KRS 436.010(1) provides:

'Any person who, under promise of marriage, seduces and has carnal knowledge of any female under twenty-one years of age, shall be confined in the penitentiary for not less than one nor more than five years.'

Mary Ruth Howard, the prosecuting witness, was a divorcee at the time of her seduction. Appellant contends that KRS 436.010 applies only to a female who has never been married. The theory advanced is that once a woman has been married she can no longer be considered a chaste person, and that by reason of her marriage she has become so knowledgeable that she is immune to the wiles of a seducer.

Appellant's argument is based on Jennings v. Commonwealth, 109 Va. 821, 63 S.E. 1080, 21 L.R.A., N.S., 265, 132 Am.St.Rep. 946, 17 Ann.Cas. 64. Jennings was approved in Evans v. Commonwealth, 183 Va. 775, 33 S.E.2d 636. The Virginia decision was based on the interpretation of a statute concerned with 'any unmarried female of previous chaste character.' 'Unmarried' was construed to mean 'never having been married.'

A general statement of the rule appears in 47 Am.Jur., Seduction, Section 14, page 638, as follows:

'In accordance with the view that chastity does not necessarily connote virginity, it has been said that the spirit of the law penalizing seduction does not and cannot take into consideration the wisdom and experience of those whom it undertakes to protect from wrong. Accordingly, it has been held that the law creating criminal seduction safeguards the virtue of the chaste widow or divorced woman just as much as that of the woman who has never been a wife, although the contrary has been held in at least one case. It is interesting to note in this connection that 'the Roman law made penal the seduction of widows as well as virgins."

Seduction statutes are generally construed to include all unmarried women, whether spinsters, widows, or divorcees. 79 C.J.S. Seduction § 33, page 987. See People v. Weinstock, Mag.Ct., 140 N.Y.S. 453; State v. Wallace, 79 Or. 129, 154 P. 430, L.R.A.1916D, 457; and State v. Eddy, 40 S.D. 390, 167 N.W. 392.

The rule here has long been that in order to sustain 'a conviction under this charge it must appear that the seduced female was of chaste character at the time of the intercourse. However, the fact that she at one time left the path of virtue and became unchaste will not defeat a conviction if the evidence shows her to be a chaste woman for a reasonable time immediately before such intercourse.' Hoskins v. Commonwealth, 188 Ky. 80, 221 S.W. 230, and cases therein. See also Byrley v. Commonwealth, 264 Ky. 403, 94 S.W.2d 1008; and Holt v. Commonwealth, Ky., 259 S.W.2d 463. Under such rule certainly a divorcee is entitled to be protected by KRS 436.010.

The prosecutrix was permitted to testify concerning a telephone conversation with the appellant in which he 'asked what it would take to drop the charges.' In Gossage v. Commonwealth, 256 Ky. 532, 76 S.W.2d 596, a conviction of seduction was affirmed. The admission into evidence of letters written by the seducer by which he offered cash in settlement of the prosecution was approved.

Appellant relies on Bennett v. Commonwealth, 234 Ky. 333, 28 S.W.2d 24. In Bennett, the testimony of a Commonwealth's attorney to the effect that the defendant offered to plead guilty in return for assurance that he would not receive the death penalty was held to be inadmissible because of the confidential relationship of the officer. This was pointed out in Bond v. Commonwealth, 236 Ky. 472, 33 S.W.2d 320, wherein the owner of stolen property was permitted to testify that after indictment and before trial the defendant had inquired of him as to how much it would take to compromise the prosecution. Here, the prosecutrix bore no confidential relationship to the appellant. The telephone conversation was properly admitted as a 'substantial basis for an inference of guilt.' Taylor v. Commonwealth, Ky., 403 S.W.2d 713.

Complaint is made that the court failed to define the terms 'seduction,' 'divorcee,' 'chaste,' and 'virtuous.' The court gave four instructions. The first instruction was couched in the language of the statute. Generally this is sufficient to define seduction. Bush v. Commonwealth, 205 Ky. 14, 265 S.W. 468; Fogle v. Commonwealth, 210 Ky. 745, 276 S.W. 814; Nunley v....