Garrison v. Commonwealth

• Decision Date: 25 March 1932
• Citation: 243 Ky. 253
• Parties: Garrison v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

Page 253

243 Ky. 253

Garrison v. Commonwealth.

Court of Appeals of Kentucky.

Decided March 25, 1932.

1. Seduction. — Intercourse induced simply by mutual desire of parties to gratify lustful passion held not within statute prohibiting seduction "under" promise of marriage (Ky. Stats., sec. 1214).

The word "under" in Ky. Stats., sec. 1214, punishing seduction "under promise of marriage," is not used in the sense of "during the existence of," but has the meaning of "by" or "by reason of."

2. Seduction. — Gist of offense under statute punishing seduction under promise of marriage is promise and yielding in consequence thereof (Ky. Stats., sec. 1214).

3. Seduction. — Indictment charging seduction "while under promise of marriage" held defective in omitting essential element of promise and yielding in consequence thereof (Ky. Stats., sec. 1214).

4. Indictment and Information. — Ordinarily, felonies are not barred by limitation, rendering it necessary to allege only facts showing offense was committed before indictment (Criminal Code of Practice, sec. 129).

5. Indictment and Information. — Where prosecution may be barred by lapse of time, indictment must allege offense was committed within limitation period.

6. Indictment and Information. — Indictment under Seduction Statute providing prosecutions thereunder shall be instituted within four years after offense, not alleging charged offense was committed within such period before indictment, held fatally defective (Ky. Stats., sec. 1214; Criminal Code of Practice, sec. 129).

Appeal from Butler Circuit Court.

HINES & WILLIS for appellant.

BAILEY P. WOOTTON, Attorney General, and H. HAMILTON RICE, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE CLAY.

Reversing.

This is an appeal from a judgment convicting appellant of seduction under promise of marriage, and fixing his punishment at one year's imprisonment.

According to the prosecutrix, who had been engaged in carrying the mail to Morgantown, appellant had visited her off and on for some time. In December, 1929, they agreed to marry, and about January 1, 1930, he had intercourse with her. Several acts of intercourse followed until he quit in June. All of this occurred at her home in a room to which the door was unlocked, and often when others were in the next room. On the other hand appellant denied both the promise and the intercourse. There was also evidence that the prosecutrix had been more or less friendly with other men, and several witnesses testified that her reputation for morality was bad, while perhaps an equal number testified that her reputation was good until the facts of this case were brought to light. A young man, who had known prosecutrix, testified that, on one occasion while they were at Sunday school at the Temple View Church, prosecutrix, who was seated in front of him, turned and told him that she was in trouble and asked him to marry her, but he declined to consent to the arrangement. He refused to answer whether he had maintained improper relations with the prosecutrix.

The prosecution is under section 1214, Kentucky Statutes, which reads:

"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 wilfully 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 instituted 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 wilfully 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."

The purpose of the statute was to deter the evil denounced, and, while doubtless the results accomplished have justified its enactment, it has sometimes been used as an instrument to bring about injustice. Rarely is it invoked unless the woman expects to become, or has become, a mother....