Hewitt v. Commonwealth

• Decision Date: 12 October 1926
• Citation: 216 Ky. 72
• Parties: Hewitt v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

Page 72

216 Ky. 72

Hewitt v. Commonwealth.

Court of Appeals of Kentucky.

Decided October 12, 1926.

Rape — Indictment for Carnal Knowledge of Female Under 16, Not Stating that Defendant was Over 21 Years of Age, Will Not Support Conviction for Felony (Ky. Stats., Section 1155, Subdivs. 1-5 [Acts 1922, Chapter 17]; Criminal Code of Practice, Section 122). — Indictment for carnal knowledge of female under 16, not stating that defendant was over 21 years of age, will not support conviction for felony, under Ky. Stats., section 1155, subdivs. 1, 2, or 3 (Acts 1922, c. 17), in view of subsections 4, 5, and Criminal Code of Practice, section 122, regardless of whether there was demurrer to it.

Appeal from Warren Circuit Court.

G.D. MILLIKEN and A.J. OLIVER for appellant.

FRANK E. DAUGHERTY, Attorney General, for appellee.

OPINION OF THE COURT BY COMMISSIONER HOBSON.

Reversing.

Section 1155, Kentucky Statutes, as amended by the act of March 16, 1906, reads as follows:

"Whoever shall unlawfully carnally know a female under the age of sixteen years, or an idiot, shall be confined in the penitentiary not less than ten nor more than twenty years."

Curtiss Hewitt was indicted in the Warren circuit court; the statement of the facts in the indictment is in these words:

"The said Curtiss Hewitt, heretofore, to-wit, on ___ day of _____, A.D. 192_, and before the finding of this indictment, in the county aforesaid, did unlawfully and feloniously carnally know and have sexual intercourse with Irene Smith, a female not his wife, under the age of sixteen years and under the age of consent."

The indictment was returned September 10, 1925, and followed the statute above quoted. But in 1922 the legislature amended and re-enacted the statute so as to make it read as follows:

"Section 1155. Every male person who shall carnally know, with her consent, any female child not his wife, under the age of eighteen years, and every female person who shall carnally know any male child under the age of eighteen years, not her husband, shall be punished as follows: (1) When such child is under the age of twelve years, by imprisonment in the state penitentiary for not less than twenty years nor more than fifty years, or by death, in the discretion of the jury. (2) When such child is of the age of twelve years and under the age of sixteen years, by imprisonment in the state penitentiary for not less than five years nor more than twenty years. (3) When such child is of the age of sixteen years and under the age of eighteen years, by imprisonment in the state penitentiary for not less than two years nor more than ten years. (4) Any female under the age of eighteen years, charged with a violation of any of the provisions of this act, shall be dealt with and proceeded against as are other juvenile delinquents, under the provisions of section 331e, Kentucky Statutes. (5) Any male person of the age of seventeen years and under twenty-one convicted of a violation of any of the provisions of this act shall be punished by a fine not exceeding five hundred dollars and not as provided in subsections one, two, three and four of this act. (6) When any complaining witness is over the age of sixteen years and the defendant being under the age of twenty-one years, the court or jury is authorized to hear testimony in aggravation or mitigation of said charge. (7) Any female under the age of eighteen years and any male under the age of seventeen years, charged with violation of any of the provisions of this act, may be dealt with and proceeded against as are other juvenile delinquents under the provisions of section 331e, Kentucky Statutes." Acts 1922 of Kentucky, page 65.

Curtiss Hewitt was found guilty and his punishment was fixed at five years' imprisonment in the penitentiary. The only question...