Burdue v. Commonwealth

• Citation: 144 Ky. 428,138 S.W. 296
• Parties: BURDUE v. COMMONWEALTH.
• Decision Date: 21 June 1911
• Court: Court of Appeals of Kentucky

138 S.W. 296

144 Ky. 428

BURDUE v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 21, 1911

Appeal from Circuit Court, Jefferson County, Criminal Division.

W. D Burdue was convicted of incest, and appeals. Affirmed.

Elmer C. Underwood, for appellant.

James Breathitt, Atty. Gen., Theo. B. Blakey, Asst. Atty. Gen., J M. Huffaker, and Loraine Mix, for the Commonwealth.

LASSING J.

Appellant W. D. Burdue was indicted in the Jefferson circuit court charged with the crime of incest. To that indictment he entered a plea of not guilty. Upon a trial before a jury he was found guilty as charged in the indictment and given an indeterminate sentence in the penitentiary. He prosecutes this appeal and seeks a reversal upon three grounds: First that the charge of incest is not made out by proof that the parties concerned were half-brother and half-sister; second, that a plea of former jeopardy interposed should have been sustained; and, third, that he was the victim of a conspiracy entered into between the prosecuting witness and one Mrs. Mann. Considering these points in their natural order, we will first determine whether or not the plea of former jeopardy should have been sustained.

The facts out of which it grows are as follows: Kate Vanderpool, the half-sister of appellant, lived in Toledo, Ohio. She was 16 years old. The death of her parents had left her a dependent orphan before she had reached her thirteenth year. At the urgent invitation of appellant and his wife, she came to Louisville on June 30, 1910, to make his house her home. Appellant's family consisted of himself, wife, and little daughter. Everything went well until August 1st, when his wife and daughter went away for a visit, leaving appellant and his sister in the house together. The very first evening after his wife left he made improper advances to his sister, and on the following Friday night forcibly had intercourse with her. This conduct was repeated by him for several days until she told a neighbor, Mrs. Mann, about it, and, acting upon her advice, caused appellant's arrest upon a charge of rape. He was indicted for this offense. Upon a trial on this charge he was found guilty; but, upon motion, the verdict was set aside and a new trial awarded him. Thereafter he was indicted for incest, and, upon motion of the commonwealth's attorney, the indictment for rape was filed away or dismissed; the commonwealth having elected to prosecute him for incest rather than rape. Under the indictment charging rape he had been found guilty, but, when that verdict was set aside, the case stood as though it had never been tried. It resulted, then, that there were two indictments against him, one charging rape and the other incest. The commonwealth elected to try the latter, and of this the appellant may not complain.

The case of Jones v. Commonwealth, 114 Ky. 599, 71 S.W. 643, 24 Ky. Law Rep. 1434, is wholly unlike the case at bar. In that case the court simply held that where a prosecution had been pending for some time, and the defendant was in court demanding a trial, it was error for the court to file away the indictment with leave to redocket over the protest of the accused. The judgment was reversed because of this error and the cause remanded with instructions to redocket the case, and give to the accused as speedy a trial as the ends of justice would permit. Section 9 of the Criminal Code provides that all public offenses may be prosecuted by indictment, save certain excepted classes, of which this offense is not one. Clearly the grand jury was authorized to return an indictment for rape if they believed the evidence before them supported such a charge, and likewise they were authorized to return an indictment for incest if the facts warranted it. Section 126 of the Criminal Code provides that an indictment shall charge but one offense, although the same offense, if it may have been committed in different modes and by different means, may be charged in the alternative. Section 168 of the Criminal Code provides that, where an indictment improperly charges more than one offense, the attorney for the commonwealth may dismiss one of them. Section 262 provides that, upon indictment for an offense consisting of different degrees, the defendant may be found guilty of any degree not higher than that charged in the indictment, and may be found guilty of any offense included in that charged in the indictment. Section 177 provides that, where an offense consists of different degrees, a conviction or acquittal by judgment upon a verdict shall be a bar to the prosecution of the offense in any of its degrees. Section 263 defines the offenses that may be deemed degrees of the same offense, as follows: (1) All offenses of homicide; (2) all injuries to the person; (3) all offenses of larceny; (4) arson and house burning; (5) burglary and housebreaking; (6) an offense, and the attempt to commit the offense, if the attempt be punishable. These offenses could not be united or charged in the same indictment.

In Fenston v. Commonwealth, 82 Ky. 549, it was held, under an indictment charging rape upon a female under 12 years of age, that the offense of carnally...