Bush v. Commonwealth

CourtCourt of Appeals of Kentucky
Writing for the CourtCLARKE, J.
Citation205 Ky. 14,265 S.W. 468
PartiesBUSH v. COMMONWEALTH.
Decision Date10 October 1924

265 S.W. 468

205 Ky. 14

BUSH
v.
COMMONWEALTH.

Court of Appeals of Kentucky.

October 10, 1924


Rehearing Denied Nov. 21, 1924.

Appeal from Circuit Court, Clark County.

Johnny Bush was convicted of seduction, and appeals. Affirmed. [265 S.W. 469]

Redwine & Redwine, of Winchester, for appellant.

Frank E. Daugherty, Atty. Gen., and Moorman Ditto, Asst. Atty. Gen., for the Commonwealth.

CLARKE, J.

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...

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10 practice notes
  • Kralick v. Shuttleworth, 5421
    • United States
    • Idaho Supreme Court
    • 4 Junio 1930
    ...proper matter to be pleaded and proved as a defense by the defendant. (Miller v. State, 27 Ga.App. 180, 107 S.E. 784; Bush v. Commonwealth, 205 Ky. 14, 265 S.W. 468; 6 Words & Phrases, 7, First Series, on Seduction, and the following cases quoted there; Bailey v. O'Bannon, 28 Mo.App. 39, 50......
  • Nunley v. Commonwealth
    • United States
    • United States State Supreme Court (Kentucky)
    • 27 Abril 1948
    ...As was said in the case of Fogle v. Commonwealth, 210 Ky. 745, 276 S.W. 814, quoting from the earlier case of Bush v. Commonwealth, 205 Ky. 14, 265 S.W. "`An instruction couched in the language of the indictment which follows the statute sufficiently defines seduction unless the question of......
  • Nunley v. Com.
    • United States
    • Court of Appeals of Kentucky
    • 27 Abril 1948
    ...As was said in the case of Fogle v. Commonwealth, 210 Ky. 745, 276 S.W. 814, quoting from the earlier case of Bush v. Commonwealth, 205 Ky. 14, 265 S.W. 468: instruction couched in the language of the indictment which follows the statute sufficiently defines seduction unless the question of......
  • Amburgey v. Com.
    • United States
    • Kentucky Supreme Court
    • 24 Marzo 1967
    ...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. Commonwealth, 307 Ky. 274, 210 S.W.2d Appellant's insistence that t......
  • Request a trial to view additional results
10 cases
  • Kralick v. Shuttleworth, 5421
    • United States
    • Idaho Supreme Court
    • 4 Junio 1930
    ...proper matter to be pleaded and proved as a defense by the defendant. (Miller v. State, 27 Ga.App. 180, 107 S.E. 784; Bush v. Commonwealth, 205 Ky. 14, 265 S.W. 468; 6 Words & Phrases, 7, First Series, on Seduction, and the following cases quoted there; Bailey v. O'Bannon, 28 Mo.App. 39, 50......
  • Nunley v. Commonwealth
    • United States
    • United States State Supreme Court (Kentucky)
    • 27 Abril 1948
    ...As was said in the case of Fogle v. Commonwealth, 210 Ky. 745, 276 S.W. 814, quoting from the earlier case of Bush v. Commonwealth, 205 Ky. 14, 265 S.W. "`An instruction couched in the language of the indictment which follows the statute sufficiently defines seduction unless the question of......
  • Nunley v. Com.
    • United States
    • Court of Appeals of Kentucky
    • 27 Abril 1948
    ...As was said in the case of Fogle v. Commonwealth, 210 Ky. 745, 276 S.W. 814, quoting from the earlier case of Bush v. Commonwealth, 205 Ky. 14, 265 S.W. 468: instruction couched in the language of the indictment which follows the statute sufficiently defines seduction unless the question of......
  • Amburgey v. Com.
    • United States
    • Kentucky Supreme Court
    • 24 Marzo 1967
    ...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. Commonwealth, 307 Ky. 274, 210 S.W.2d Appellant's insistence that t......
  • Request a trial to view additional results

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