Berry v. Commonwealth

• Decision Date: 20 September 1912
• Citation: 149 Ky. 398,149 S.W. 824
• Parties: BERRY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

149 S.W. 824

149 Ky. 398

BERRY v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 20, 1912

Appeal from Circuit Court, Ballard County.

Jesse Berry was convicted of crime, and he appeals. Reversed and remanded.

Evans &amp Flatt, of Clinton, for appellant.

James Garnett, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen for the Commonwealth.

HOBSON C.J.

Jesse Berry was indicted in the Ballard circuit court, under section 1214, Kentucky Statutes, for the crime of seduction it being charged in the indictment that under the promise of marriage he seduced and had carnal knowledge of Bessie Brown a female under 21 years of age. Upon the trial of the case the proof for the commonwealth showed that he had had carnal knowledge of Bessie Brown under promise of marriage, and that she was then under 21 years of age. The proof for him showed that he had intercourse with the girl freely and by her consent, without promise of marriage, and that she was a lewd woman. It also showed that he was then a married man, and that she knew it. She denied she knew that he was a married man, and stated that he told her he had been divorced from his wife.

On this state of the evidence, the court, in substance, instructed the jury: First. If they believed, beyond a reasonable doubt, the facts to be as set out in the indictment, they should find him guilty as charged. Second. If they had reasonable doubt of his guilt, they should acquit him. Third. If they believed from the evidence that at the time he was a married man, and not divorced from his wife, and Bessie Brown knew this, they should find him not guilty. The jury found him guilty, as charged, and, the court having entered judgment upon the verdict, the defendant appeals.

We find no error in the instructions of the court, so far as they go, except that in instruction 3 the words "if they believe from the evidence" should be omitted, as the defendant is entitled to the benefit of the reasonable doubt on the whole case. The instructions should be so framed as to show this.

The court erred in not defining to the jury what seduction is. In 2 Roberson's Criminal Law, § 493, the rule is thus stated: "It is essential that the woman seduced be of chaste character at the time of the intercourse, though it is not so expressed in the statute. *** Although a woman may have previously left the path of virtue and become unchaste yet if she has repented of that act, and reformed, she is then within the protection of the statute, and may again be seduced." State v. Carron, 18 Iowa 372, 87 Am.Dec. 401. This statement of the law was in effect approved by this court in Com. v. Wright, 27 S.W....