Commonwealth v. Pennington

• Decision Date: 05 October 1920
• Citation: 224 S.W. 644,189 Ky. 182
• Parties: COMMONWEALTH v. PENNINGTON.
• Court: Kentucky Court of Appeals

224 S.W. 644

189 Ky. 182

COMMONWEALTH v. PENNINGTON.

Court of Appeals of Kentucky.

October 5, 1920

Appeal from Circuit Court, Carter County.

Morton Pennington was indicted for detaining a woman for the purpose of sexual intercourse, and after two trials, at both of which the jury disagreed, the Commonwealth appealed, asking a certification of the law as to its right to an instruction which the court refused to give. Refusal of instruction held proper.

Chas I. Dawson, of Frankfort, and John M. Waugh, of Ashland, for the Commonwealth.

Theobald & Theobald, of Grayson, for appellee.

SAMPSON J.

Pennington was indicted in January, 1919, in Carter circuit court, for the crime of detaining Laura Hilton against her will for the purpose of having carnal knowledge of her himself in the year 1916. In May, 1919, he was put upon trial, but the jury failed to agree upon a verdict and was discharged. He was again put upon trial in July, 1920, and the jury again disagreed, and no verdict was returned. Upon each of the trials the court gave to the jury the usual instructions in prosecutions under section 1155, Kentucky Statutes, but on the last trial the attorney for the commonwealth asked that the court further instruct the jury as follows:

"The court further instructs the jury that a female under the age of 16 years is incapable of consent to unlawful sexual intercourse or to being detained for that purpose, and if the jury believe from the evidence in this case beyond a reasonable doubt that, at the time of the offense charged in the indictment, the prosecuting witness, Lora Hylton was under 16 years of age, and if they shall further believe from the evidence beyond a reasonable doubt that defendant did unlawfully and feloniously detain her for the purpose of having carnal sexual intercourse with her himself, she being under that age, they will find him guilty and fix his punishment as defined in instruction No. 1."

This was refused, to which the commonwealth excepted, and prayed an appeal to this court, asking a certification of the law.

There is no bill of exceptions, and under sections 341 and 282, Criminal Code, this court will not consider alleged errors in instructions of the court to the jury, unless the bill of exceptions contains--

"all the instructions given by the court to the jury, and unless it shall thereupon appear that the law applicable to the case was not correctly and fairly given to the jury. * * * The exception shall be shown upon the record, by a bill of exceptions, prepared, settled and signed, as provided in the Code of Practice in civil cases." However, the offered instruction was made a part of the orders of the court and was duly certified by the clerk.

In Judge's Miller's most excellent work on Kentucky Appellate Practice and Forms, pp. 105 and 106, it is said:

"In absence of a bill of exceptions containing all the evidence, the court will presume there was sufficient evidence upon which to base the instructions given, and that the evidence did not warrant the giving of those which were refused. But

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