Earl v. Commonwealth

• Decision Date: 22 April 1924
• Citation: 261 S.W. 239,202 Ky. 726
• Parties: EARL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

261 S.W. 239

202 Ky. 726

EARL v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 22, 1924

Appeal from Circuit Court, Harlan County.

Grover Earl was convicted of carnally knowing a female under the age of 16 years, and appeals. Reversed, with directions to grant new trial.

Lyttle & Morgan, for appellant.

Frank E. Daugherty, Atty. Gen., and Gardner K. Byers, Asst, Atty Gen., for the Commonwealth.

SANDIDGE C.

The appellant, Grover Earl, was indicted by the grand jury of Harlan county at the August term, 1922, of the Harlan circuit court, charged with having carnally known a female under the age of 16 years. He was tried at the same term of the court on the 6th day of September, and was found guilty and his punishment fixed at confinement in the penitentiary for 10 years. His motion for a new trial having been overruled, he prosecutes this appeal, seeking a reversal upon the several grounds set forth in his motion for a new trial.

Two grounds for a reversal are relied upon by the appellant, as his contentions are presented to this court by the brief of his counsel, which are sufficiently covered by the grounds for a new trial to be considered here. The first relates to the misconduct of the trial court in forcing the appellant into trial before his counsel had had proper opportunity to prepare the case. It will be unnecessary, however, to consider this question, as the conclusion reached on other questions will afford adequate relief.

2. It is urged for the appellant that the crime for which he was convicted occurred prior to the enactment of chapter 17, Acts of 1922; that by this act the minimum penalty provided for this crime was reduced from ten to five years; that the trial of the charge was not had until after the act became effective; that therefore the defendant should have been given the benefit of the mitigating change in the punishment and that for failing so to do in the instructions given the jury the court below erred to the prejudice of his substantial rights.

A defendant may claim the right to a mitigating change in the punishment provided for an offense only by virtue of the concluding sentence of section 465, Kentucky Statutes. It reads:

"If any penalty, forfeiture, or punishment be mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect."

It will be observed that by the express provision of this statute its benefits are available to a defendant only when he consents to same. Construing this section of the statutes, in the case of Cockerell v. Commonwealth, 115 Ky. 296, 73 S.W. 760, 24 Ky. Law Rep. 2149, this court sad:

"In view of the imprisonment that may be imposed under the statute as amended, and which was not permitted to be inflicted under the former statute, it may well be doubted whether the new law mitigates the punishment provided by the former statute. At any rate, it cannot be said that the appellant was prejudiced by the failure of the lower court to instruct the jury to inflict the penalty found in the amendment or new law, as that could not have been done without the consent of appellant, and such consent is not disclosed by the record."

It will thus be seen that this court has held that to obtain the benefit of the lesser punishment it must appear from the record that the defendant consented to same. See, also, Coleman v. Commonwealth, 160 Ky. 87, 169 S.W. 595; and Kinser v. Commonwealth, 181 Ky. 727, 205 S.W. 951. The record in the case now under consideration does not disclose that the defendant consented to have the jury instructed under the new law. Hence we conclude that it was not prejudicial error on the part of the trial court to instruct under the old law.

3. We find in the record, however, a more serious question than either of those above discussed. Upon the trial of this case the prosecuting witness was permitted to testify to repeated acts by the appellant constituting the crime charged in the indictment and that they had occurred both in Harlan county and elsewhere. It appears from her testimony that they occurred from time to time while the witness resided both at Coxton and at Wallins' Creek, in Harlan county. She testified that she lived at Coxton from November, 1921, until April, 1922, and that she lived at Wallins' Creek from April, 1922, until the date of the trial, which occurred in September, 1922.

The commonwealth was not required to elect before or at any time during the trial...