Commonwealth v. Tobin

• Decision Date: 13 October 1910
• Citation: 140 Ky. 261
• Parties: Commonwealth v. Tobin.
• Court: Kentucky Court of Appeals

Page 261

140 Ky. 261

Commonwealth v. Tobin.

Court of Appeals of Kentucky.

Decided October 13, 1910.

Appeal from Bourbon Circuit Court.

JAMES BREATHITT, Attorney General, TOM B. McGREGOR Asst. Attorney General, CHARLES H. MORRIS, and ROBERT B. FRANKLIN, Commonwealth's Attorney, for appellant.

P. A. THOMPSON for appellee.

OPINION OF THE COURT BY JUDGE O'REAR — Affirming.

A general demurrer was sustained to the following indictment, and the Commonwealth appeals:

"The grand jury of the county of Bourbon in the name and by the authority of the Commonwealth of Kentucky, accuse Claude Tobin of the crime of willfully (and without such cause as constitutes a statutory ground for divorce to the husband) abandoning and deserting a female twenty-one years of age, whom he had seduced under promise of marriage, within three years after the marriage committed as follows, viz:

"The said Claude Tobin, in the said county of Bourbon on the tenth day of June, A. D., 1910, and within twelve months theretofore the finding of this indictment, did unlawfully, willfully, and feloniously, without such cause as constitutes a statutory ground for divorce to the husband, abandon and desert his wife who was Nannie Berry, a female under twenty-one years of age, whom he had unlawfully and feloniously seduced and had carnal knowledge of under promise of marriage, and for which seduction the said Tobin, was by the grand jury of Bourbon county, indicted on the fourth day of December, 1909, and to avoid prosecution under said indictment, the said Tobin had after December 4th, 1909, married said Nannie; and within three years after said marriage the said Tobin had and did abandon and desert said Nannie as and when aforesaid, against the peace and dignity of the Commonwealth of Kentucky."

The indictment was framed under section 1214, Ky. Stats. (Carroll's)

The indictment must charge in its accusative part, the public offense for which it is intended to present the accused, and in the descriptive part, must state the facts which if established by the proof constitute the offense charged. (Brooks v. Commonwealth, 98 Ky. 143, 17 R. 693.) It must be direct and certain as to (1) the party charged; (2) the offense charged; (3) the county in which the offense was committed, and (4) the particular circumstances of the offense charged, if they be necessary to constitute a complete offense. (Sec. 124, Criminal Code.)

The same act may constitute either of several punishable offenses. It is at the election of the prosecuting officer, or in an indictable offense, at the election of the grand jury, to determine which of the offenses embraced in the act complained of the accused will be put on trial for. Hence the necessity for charging with certainty the particular offense for which he is to be prosecuted. The rule is, the offense charged controls and a description of it that might have enlarged that offense will not operate of itself to do so, the matter in addition to that necessary to be stated being regarded as surplusage. (Coe v. Commonwealth, 94 Ky. 606; Commonwealth v. Jarboe, 89 Ky. 143.)

The offense charged in this indictment is that the accused "willfully abandoned a female under twenty-one years of age, whom he had seduced under promise of marriage, within three years of the marriage." But that is not a criminal offense under the laws of Kentucky. While that fact is taken notice of by the statutes for other purposes, it is not punishable criminally.

But it is argued for the Commonwealth, if the indictment is sufficient in its terms to charge a public offense, and is reasonably certain as to the offense charged, and the circumstances of it, it is good although it may contain surplusage, and necessitate some grammatical re-arrangement. We have endeavored to apply the rule contended for to the case in hand. Conceding that the accusation sufficiently charges the seduction of a female under twenty-one years of age under a promise of marriage, and admitting the charge of her abandonment within three years was an unnecessary statement in the accusation, it must then appear in the description of the offense that it had been committed within the jurisdiction of the indicting court. Overlooking the arrangement of the language of the description which seems to be aimed at the supposed offense of abandonment, and noting the facts appearing, which may be taken as that the accused seduced Nannie Berry, an infant female under twenty-one years of age, under a promise of marrying her, and after having been indicted therefor he did marry her, but within three years, without statutory cause to him for a divorce, abandoned her, still the indictment is deficient. It does not state in what county the seduction occurred, nor does it allege that the seduction occurred in this state. It does charge that the abandonment occurred in Bourbon county, Kentucky. But for aught that appears the seduction may have occurred elsewhere, and beyond the jurisdiction of the Bourbon circuit court. It is as necessary to state the county in which the offense charged was committed, as any other fact named in the indictment.

The opinion in Commonwealth v. McNutt, 118 S. W. 978, is relied on by the Attorney General as authority in the support of the sufficiency of this indictment. The question in McNutt's case was if the accused marry the girl before indictment, whether the statute for seduction applied. We held that it did.

The statute originally was that "whoever shall, under promise of marriage, seduce and have carnal knowledge of any female under sixteen years of age, shall be guilty of a felony, and upon conviction thereof, shall be confined in the penitentiary not less than one nor more than five years;...