Fuson v. Commonwealth

• Decision Date: 16 October 1925
• Citation: 210 Ky. 573,276 S.W. 512
• Parties: FUSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

276 S.W. 512

210 Ky. 573

FUSON v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 16, 1925

Appeal from Circuit Court, Bell County.

General Fuson was convicted of unlawfully detaining a woman against her will, and appeals. Affirmed.

D. M Bingham and M. G. Colson, both of Pineville, for appellant.

Frank E. Daugherty, Atty. Gen., and Moorman Ditto, Asst. Atty Gen., for the Commonwealth.

CLARKE C.J.

Appellant was convicted of unlawfully detaining a woman against her will, as denounced and defined by section 1158 of the Statutes.

His first insistence for reversal of the judgment is that the court erred in overruling his demurrer to the indictment. The indictment follows the language of the statute, and we have held in numerous cases that this is all that is necessary in charging one with the commission of this offense. Higgins v. Commonwealth, 94 Ky. 54, 21 S.W. 231, 14 Ky. Law Rep 729; McKey v. Commonwealth, 145 Ky. 450, 140 S.W 658; Stark v. Commonwealth, 169 Ky. 539, 184 S.W. 875; Gravitt v. Commonwealth, 184 Ky. 429, 212 S.W. 430. In the last-named case, the court said:

"The crime, which the indictment accused the appellant of, is a statutory one, and is described by the statute, and usually an indictment for a statutory offense, which follows the language of the statute, is sufficient, and such is the case with reference to the crime denounced by section 1158."

The only criticism of the indictment in this case is its failure to allege that the defendant and prosecutrix were not husband and wife, which is not necessary under the rule of the above cases, since not done by the statute in defining the offense. It is true that such an allegation was contained in the indictment in some of the cases supra, although it does not seem to have been contained in some of the others. However, the precise question was considered in Commonwealth v. Landis, 129 Ky. 445, 112 S.W. 581, 16 Ann. Cas. 901, with reference to the crime of carnally knowing a female under 16 years old, as denounced by section 1155 of the Statutes, and it was there held that it was not necessary to allege that the prosecutrix was not the wife of the defendant. There could be no more necessity for such an allegation in the one case than the other, and we therefore conclude there is no merit in this contention.

This also disposes of a like criticism of the instructions which followed the language of the indictment in...