Com. v. Landis
| Decision Date | 24 September 1908 |
| Citation | 112 S.W. 581,129 Ky. 445 |
| Parties | COMMONWEALTH v. LANDIS. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Pulaski County.
"To be officially reported."
J. C Landis, having been convicted of rape, was granted a new trial, and the commonwealth appeals. Opinion rendered.
Gen Tom B. McGregor, Asst. Atty. Gen., and B. J. Bethurum, for the Commonwealth.
Appellee was indicted, charged with the offense of carnally knowing a female under the age of 16 years. The indictment is as follows: "The grand jury of Pulaski county, in the name and by the authority of the commonwealth of Kentucky, accuse J. C. Landis of the crime of carnally knowing a female under the age of sixteen years, committed in the manner and form as follows, viz.: The said Landis on the last day of May, 1908 before the finding of this indictment and in the county and state aforesaid, did unlawfully carnally know Esther Miller who was then and there a female under the age of sixteen years, against the peace and dignity of the commonwealth of Kentucky." To this indictment the appellee entered a plea of "not guilty," was tried, and his punishment fixed at confinement in the penitentiary for 10 years. He filed a motion and grounds for a new trial, and upon hearing this motion was sustained, the verdict of the jury was set aside, and appellee granted a new trial. The proof offered by the commonwealth warranted the finding of the jury, and it is alleged that the trial judge granted a new trial because the indictment failed to charge that appellee and the prosecuting witness were not husband and wife, and that the proof failed to establish this fact. The only question before us on this appeal is the sufficiency of the indictment.
This indictment is drawn under section 1155 of the Kentucky Statutes of 1903, Acts 1906, p. 252, c. 24 which reads as follows: "Whoever shall unlawfully carnally know a female under the age of 16 years, or an idiot, shall be confined in the penitentiary not less than ten nor more than twenty years." The indictment follows substantially the language of the statute. Subsection 2 of section 122 of the Criminal Code of Practice provides that: "An indictment must contain a statement of the acts constituting the offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended; and with such degree of certainty as to enable the court to pronounce judgment, on conviction, according to the right of the case." Section 124 of the Criminal Code of Practice defines the facts that must be stated with certainty in an indictment to be "the party" and "the offense" charged, the county in which the...
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Hunley v. Com.
... ... offense is purely a statutory one, and the rule is universal ... that in the accusatory paper charging such offenses the ... elements which the statute enacts as descriptive of the ... offense should be charged. We are ... [290 S.W. 512] ... aware that in the case of Commonwealth v. Landis, ... 129 Ky. 445, 112 S.W. 581, 33 Ky. Law Rep. 983, which was an ... indictment under the statute as it was before the 1922 ... amendment, held that no such negative statement was required ... in the indictment, but the statute as it existed at that time ... contained no such element of the ... ...
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...the existence of marital relationship is generally held to be a matter of defense. State v. Williamson, supra; Commonwealth v. Landis, 129 Ky. 445, 112 S.W. 581 (Ct.App.1908); State v. Fudge, 96 W.Va. 109, 122 S.E. 519 (Sup.Ct.1924); Commonwealth v. Fogerty, 8 Gray, Mass., 489 (Sup.Ct.1857)......
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