Higgins v. Commonwealth

• Decision Date: 11 February 1893
• Citation: 94 Ky. 54,21 S.W. 231
• Parties: HIGGINS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

21 S.W. 231

94 Ky. 54

HIGGINS v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 11, 1893

Appeal from circuit court, Pulaski county.

To be officially reported.

Barney P. Higgins was convicted of unlawfully taking a woman against her will, with intent to have carnal knowledge with her, and appeals. Reversed.

W. A Morrow, J. W. Colyer, and C. H. Blackburn, for appellant.

W. J Hendrick, for the Commonwealth.

HAZELRIGG J.

The appellant was tried, convicted, and sentenced to the penitentiary for the term of two years, upon an indictment under section 9, art. 4, c. 29, of the General Statutes which provides that "whoever shall unlawfully take or detain any woman against her will, with intent *** to have carnal knowledge with her, *** shall be confined in the penitentiary not less than two, nor more than seven years."

On this appeal he urges, as grounds for reversal, first, the omission of the word "feloniously" in the indictment. To this it is sufficient to say that the acts mentioned in the statute quoted, when unlawfully done, constitute the whole of the crime denounced therein. It need not be charged of the accused that he acted maliciously, willfully, or feloniously. If he be charged in the language of the statute creating the crime, and in the manner required by it, then the charge is complete, and includes all that is required to be established in order to constitute the guilt of the accused. In common-law felonies the rule is different. See Kaelin v. Com., 84 Ky. 354, 1 S.W. 594; Cundiff v. Com., 86 Ky. 196, 5 S.W. 486.

Secondly, the appellant's counsel contend that the statute has no application in this case, because of the insanity of the victim alleged to have been unlawfully detained; that the crime must be committed against a woman having a will, capable of exercising it, and "against her will." But the authority relied on, happily, stops far short of supporting such an inhuman and unreasonable doctrine. The generous principle of the law governing the case was aptly illustrated in the instruction of the lower court, whereby the jury was told that any act done towards the alleged victim by the defendant, other than acts of kindness, courtesy, or friendship, were done "against her will."

But the appellant, after due notice, filed his petition for a change of venue, alleging that on account of the prejudice against him, and the excited state of public opinion, he could not have a fair and impartial trial in Pulaski county. He supported his petition with the affidavits of two credible witnesses, all in strict accordance with the...