Gravitt v. Commonwealth

• Decision Date: 27 May 1919
• Citation: 212 S.W. 430,184 Ky. 429
• Parties: GRAVITT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

212 S.W. 430

184 Ky. 429

GRAVITT v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 27, 1919

Appeal from Circuit Court, Graves County.

Ira Gravitt was convicted of a violation of Ky. St. § 1158, and a new trial being denied, he appeals. Reversed and remanded.

Webb &amp Weaks and B. C. Seay, both of Mayfield, and Samuel H Crossland, of Paducah, for appellant.

Chas H. Morris, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen., for the Commonwealth.

HURT J.

The appellant, Ira Gravitt, was tried and convicted, and sentenced to imprisonment for four years, upon an indictment charging him with a violation of section 1158, Ky. Stats. His motion for a new trial being overruled, he has appealed, and insists that the trial court erred to the prejudice of his substantial rights by: (1) Overruling a demurrer to the indictment; (2) admitting incompetent evidence against him; (3) misinstructing the jury and failing to properly instruct the jury; (4) overruling his motion for a new trial. These alleged errors will be considered in their order.

(a) The complaint made against the indictment is that it charges that the accused did, "with force and arms, unlawfully, willfully, and feloniously take and detain Vera Franklin against her will with the intention to have carnal knowledge of her * * * himself," the said Vera Franklin being a female, and not the wife of the accused. It is contended that the use of the word "feloniously" in describing the intention of the accused renders the indictment fatally defective. 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, supra, and as the statute which creates the crime does not require its felonious violation to make an offender guilty of the crime, it is sufficient to charge in an indictment that the accused unlawfully committed the acts which constitute guilt of the crime, and in this it is different from a common-law felony. Higgins v. Com., 94 Ky. 54, 21 S.W. 231, 14 Ky. Law Rep. 729; Kaelin v. Com., 84 Ky. 354, 1 S.W. 594, 8 Ky. Law Rep. 293; Cundiff v. Com., 86 Ky. 196, 5 S.W. 486, 9 Ky. Law Rep. 537. The use of the word "feloniously" in the indictment in the instant case, however, did not in any respect impair it or change its meaning, and was, at most, mere surplusage.

(b) A consideration of the errors complained of in the admission of the evidence against the accused will make necessary a short statement of the facts as presented by the evidence. The accused and Vera Franklin were cousins, and the homes of their parents were within about one-half mile of each other, and situated by the side of a road. Chance Handley, a half-brother of Vera Franklin, and his wife, Ina Handley, who was also a cousin, as well as a cousin of the accused, resided in a house beside the same road, and between the Franklin and Gravitt houses, and in sight of each. Vera Franklin and the accused were frequently together at their respective places of residence and elsewhere, and, according to her testimony, the accused was at the house of her father on the 22d day of May, 1918, and in the afternoon she left her home to go to the house of Cora Fields, a sister of the accused, to procure Mrs. Fields to make her a dress. The appellant accompanied her, and when they came to the house of Chance Handley there was no one at home, and she entered the house for the purpose of leaving certain letters for her sister-in-law, thinking that the accused would proceed on his way, but when she had gotten in the house she heard a step upon the porch, and then the accused entered the house, and, seizing her, threw her forcibly upon a bed, and attempted to have intercourse with her. She said to him that some one was coming, when he sprang up and start-to run, and she did also, but when they came to the door, and he saw that no one was approaching, he again seized her and threw her upon the floor, and was attempting to accomplish his purpose, when Chance Handley came near the house with a wagon, and the accused desisted and ran out of the house. Handley proceeded with the wagon to the house of the father of the accused, and she went along behind the wagon to the house, where Ina Handley was visiting at the time. Vera returned with Ina Handley to her home, and remained there overnight. Chance Handley went away to be gone until a late hour of the night, and Ina called to the accused to come and stay with her and Vera until her husband returned, which he did. On the following day, about 1 o'clock p. m., Vera was again at the home of the accused, and accompanied his father and brother in a wagon to the home of Mrs. Fields, who resided upon a farm belonging to the elder Gravitt, to have her make a dress for her. While there, the accused came in a buggy and took Treva Fields, a young lady who was there, into the buggy, when Vera, although her dress had not yet been completed, got into the buggy with them, and they proceeded to the home of the Fields girl, which was a mile away, and then Vera and the accused proceeded in the buggy to his home, where they remained for a time. The Handleys were then at their home, but left very soon, and after they left their home Vera started apparently to go to her home, but, according to her statement, when she arrived opposite the Handley home, the accused had followed her, and called to her and requested her to go into the Handley house and get a razor for him, and she agreed to do so if he would remain out in the road, but, when she had been in the house for a few moments, he came to the back door and called to her to let him in, saying that he did not want her, but wanted the razor. She opened the back door, and he came in, and immediately seized her, and, throwing her upon a bed, attempted to have intercourse with her. She resisted all she could, and after a time he desisted in his efforts and went away, and she then proceeded to her home. She testified that the assaults by the accused were against her will, while he testified that upon each occasion they went into the Handley house by agreement and for the purpose of engaging in sexual intercourse, and that his attempts to do so were with her consent, and that the failure to accomplish their purpose was not because of any objection upon her part.

It will be observed from the foregoing that, according to the evidence for the prosecution, the accused was guilty of two distinct offenses, for either of which he might be convicted under the indictment, and the evidence of his guilt of each was permitted to be introduced, and his guilt under the indictment was submitted to the jury upon the evidences of both offenses, and it would be impossible to tell which crime the jury found him guilty of, or some of the jurors might have believed him to be guilty of one of them, and their fellows may have believed him to be guilty of the other. An indictment for the crime of detaining a woman against her will, etc., can contain only one offense of that dignity, but, under our system of criminal pleading, an indictment for this offense may be so drawn that an accused may be tried upon it for any offense committed previous to the finding of the indictment upon the person named as the victim in the indictment. Where an accused is put upon trial under an indictment, and the evidence tends to prove the accused to be guilty of more than one offense of the kind which is charged in the indictment, the attorney for the commonwealth should be required by the court to elect upon which one of the offenses he will rely for conviction, and the jury should be confined by the instructions to his conviction or acquittal of the particular offense which the state has elected to rely upon for his conviction.

A defendant cannot be required to undergo a trial for two...