Com. v. Lowe

• Decision Date: 01 October 1903
• Citation: 76 S.W. 119,116 Ky. 335
• Parties: COMMONWEALTH v. LOWE.
• Court: Kentucky Court of Appeals

76 S.W. 119

116 Ky. 335

COMMONWEALTH v. LOWE.

Court of Appeals of Kentucky.

October 1, 1903

Appeal from Circuit Court, Green County.

"To be officially reported."

Eddie Lowe was indicted for rape. A demurrer to the indictment was sustained, and the commonwealth appeals. Reversed.

Clifton J. Pratt and M. R. Todd, for the Commonwealth. W. F Cantrill, for appellee.

BURNAM C.J.

The question for decision by this court upon this appeal is the sufficiency of the indictment wherein the appellee, Eddie Lowe, is charged with a violation of section 1154 of the Kentucky Statutes of 1899, which reads as follows "Whoever shall unlawfully carnally know a female, of and above twelve years of age, against her will or consent, or by force, or whilst she is insensible, shall be guilty of rape and punished by confinement in the penitentiary not less than ten nor more than twenty years, or by death in the discretion of the jury." The indictment reads as follows: "The grand jury of the county of Green, in the name and by the authority of the commonwealth of Kentucky, accuse Eddie Lowe of the crime of carnally knowing a female against her will or consent, committed in manner and form as follows, to wit: The said Eddie Lowe, in the said county of Green, on the 6th day of June, A. D. 1902, and before the finding of the indictment herein, did unlawfully, willfully, and feloniously carnally know a female, to wit, Miss Ethel Paxton, of and above twelve years of age, against her will or consent, or whilst she was insensible or incapable of exercising her will, some drug to the grand jury unknown having been administered to her, and she being incapable of exercising her will power at the time and having no self control, contrary to form of the statute in such cases made and provided, and against the peace and dignity of the commonwealth of Kentucky." The trial court sustained a demurrer to this indictment, and the commonwealth prosecutes this appeal.

It is insisted for appellee upon this appeal that the indictment is fatally defective for two reasons: First, because it does not charge that the defendant knew that the prosecuting witness was insensible, in consequence of a drug having been administered to her; second, that the offense with which he is charged is not stated with sufficient certainty to apprise him of the specific crime for which he is to be prosecuted in consequence of the use of the disjunctive "or" instead of the conjunctive "and" in the indictment. The certainty required by section 124 of the Criminal Code must be such as will apprise the defendant of the nature of the accusation, and enable him to plead the indictment and the judgment thereon in bar of any subsequent prosecution for the same offense. See Com. v. White, 18 B. Mon. 493; Com. v. Perrigo, 3 Metc. 5. The complaint that the indictment...