Bush v. Commonwealth
| Decision Date | 10 October 1924 |
| Citation | 205 Ky. 14,265 S.W. 468 |
| Parties | BUSH v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Rehearing Denied Nov. 21, 1924.
Appeal from Circuit Court, Clark County.
Johnny Bush was convicted of seduction, and appeals. Affirmed.
Redwine & Redwine, of Winchester, for appellant.
Frank E. Daugherty, Atty. Gen., and Moorman Ditto, Asst. Atty Gen., for the Commonwealth.
This is an appeal from a judgment convicting appellant of seduction and fixing his punishment at confinement in the penitentiary for three years.
The principal grounds urged for reversal are the denial of a continuance, alleged errors in the instructions, and the refusal to grant a new trial for newly discovered evidence.
In support of his motion for a continuance defendant filed his affidavit alleging the absence of his witnesses Gibson, Long and Chism. The attendance of Chism was coerced, but he was not introduced, and consideration of his absence upon the call of the case is therefore eliminated.
It was alleged that Gibson and Long would testify to criminal intimacy with the prosecutrix; the former "during the summer of 1923" and the latter in July, 1923. Upon the motion of defendant the commonwealth fixed the time of the seduction between June 1 and 11, 1923. It is therefore not apparent that the testimony of either Gibson or Long was material or competent, which no doubt explains his failure to offer their evidence as stated in his affidavit. Besides defendant did not follow Code provisions for securing their evidence. We are therefore of the opinion a reversal should not be ordered on this ground.
It also is urged that a continuance should have been allowed, as requested after the trial began, upon the ground that defendant was taken by surprise by the action of the commonwealth in fixing the time of the seduction as the first part of June rather than the latter part of July, 1923.
In support of this contention defendant filed his affidavit alleging that the latter date had been fixed as the time of the seduction by the prosecuting witness at the examining trial. This she denied, and there is no other proof upon the subject. Moreover, there is no averment other than that appellant was surprised, and, even if this were undenied, there is neither averment nor proof of facts showing that because thereof he was prevented from fully preparing and presenting his defense. Hence this insistence cannot be sustained.
The alleged errors in the instructions are the refusal to direct an acquittal and the failure to define seduction as employed in the instructions given.
The right to a directed verdict is based upon the claim that the evidence is conclusive that (1) the prosecuting witness knew appellant was married, and (2) that she was unchaste at the time of the alleged seduction. We do not, however, so read the evidence, and cannot agree that the submission of either question to the jury was error.
Although not so declared by our statute, it is essential here, as in most if not all jurisdictions, that the woman seduced be of chaste character at the time of the intercourse, "and for a reasonable time theretofore." Berry v. Commonwealth, 149 Ky. 398, 149 S.W. 824; Hudson v. Commonwealth, 161 Ky. 257, 170 S.W. 620; Gaddis v. Commonwealth, 175 Ky. 183, 193 S.W. 1052; Hoskins v. Commonwealth, 188 Ky. 80, 221 S.W. 230.
In each of these cases, save the last, a judgment of conviction was reversed because of the failure of the court to define seduction. In the Hudson and Gaddis Cases it was held to be reversible error to fail to define seduction, and in Berry's Case that such failure was error where it was material,...
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