Commonwealth v. McNutt

• Decision Date: 05 May 1909
• Citation: 118 S.W. 978,133 Ky. 702
• Parties: COMMONWEALTH v. McNUTT.
• Court: Kentucky Court of Appeals

118 S.W. 978

133 Ky. 702

COMMONWEALTH v. McNUTT.

Court of Appeals of Kentucky.

May 5, 1909

Appeal from Circuit Court, Jefferson County, Criminal Branch.

"To be officially reported."

Laurence E. McNutt was indicted for seduction, and from a judgment sustaining a demurrer to the indictment the Commonwealth appeals. Reversed and remanded.

James Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen for the Commonwealth.

Chatterson & Blitz, for appellee.

HOBSON J.

Section 1214, Ky. St. (Russell's St. § 3790), is in these words "Whoever, shall, under promise of marriage, seduce and have carnal knowledge of any female under twenty-one years of age, shall be guilty of a felony and, upon conviction thereof, shall be confined in the penitentiary not less than one year nor more than five years. No prosecution shall be instituted where the person charged shall have married the girl seduced, or offer and be willing to marry her, unless he shall willfully and without such cause as constitutes a statute ground of divorce to the husband, abandon or desert her within three years after the date of the marriage, and any prosecution shall, upon the request of the defendant, be suspended if the party accused marry the girl seduced before final judgment; but the prosecution shall be renewed and proceed as though no marriage had taken place if the accused shall willfully and without such cause as constitutes a statutory ground of divorce to the husband abandon or desert his wife within three years after the marriage. All prosecutions under this section shall be instituted within four years after the commission of the offense." Laurence E. McNutt was indicted under this statute for seducing Mattie Lee Kesler. It was charged in the indictment that he promised to marry her, and under this promise of marriage seduced her in the year 1907; that in August, 1908 he married her, and in the same month without cause as defined in the act abandoned and deserted her. The circuit court sustained a demurrer to the indictment on the ground that he had married the girl before the indictment was found. The commonwealth appeals.

Previous to the act of 1906 (Acts 1906, p. 253, c. 25) the provision of the statute on this subject was as follows: "No prosecution shall be instituted where the person charged shall have married the girl seduced." Under this provision it was held by the court that if the defendant offered in good faith and was willing to marry the girl, and she refused to marry him, there could be no prosecution, and so by the act of 1906 these words were added, "or offer and be willing to marry her." But another mischief had come up. Men in this character of cases would marry the girls seduced as a matter of form and immediately abandon them thus defeating the obvious intent of the Legislature; and so by the act of 1906 these words were added, "unless he shall willfully and without such cause as constitutes a statute ground of divorce to the husband, abandon or desert her within three years after the date of the marriage." The purpose of the Legislature was manifestly to provide that a mere form of marriage should not defeat the prosecution, and it is entirely immaterial whether the marriage takes place before the indictment is found or afterwards. The statute provides, in substance, that no prosecution shall be instituted where the defendant has married the girl, unless within three years after the date of the marriage he abandons her without cause for divorce. If the defendant has committed the offense, and he does not bring himself within the exception, he may be indicted and punished, as a prosecution will lie in every case covered by the statute,...