Howerton v. Commonwealth

• Decision Date: 29 September 1908
• Citation: Howerton v. Commonwealth, 129 Ky. 482, 112 S. W. 606 (Ky. Ct. App. 1908)
• Parties: HOWERTON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

112 S.W. 606

129 Ky. 482

HOWERTON v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 29, 1908

Appeal from Circuit Court, Crittenden County.

"To be officially reported."

Percy Howerton was convicted of carnally knowing a female under 16 years of age, and he appeals. Reversed and remanded for new trial.

J. H. &amp John A. Moore and R. L. Moore, for appellant.

Jas Breathitt, Atty. Gen., Tom B. McGregor, Asst. Atty. Gen., and John L. Graynott, for the Commonwealth.

SETTLE J.

Appellant was tried in the court below under an indictment charging him with the crime of carnally knowing a female under the age of 16 years. The jury by verdict returned found him guilty, and fixed his punishment at confinement in the penitentiary 10 years. Judgment was thereupon entered in accordance with the verdict, and from that judgment this appeal is prosecuted.

Numerous grounds were filed by appellant in the court below in support of his motion for a new trial. The evidence introduced by the commonwealth conduced to prove appellant's guilt of the crime charged. It was to the effect that he repeatedly and for a period of several months had carnal knowledge of the prosecutrix, an orphan 15 years of age, who had been received by his parents from a Louisville asylum to rear and support and that the girl was made to yield to his lust through fear superinduced by force, and threats on his part to take her life if she told of his misconduct. This testimony came from the prosecutrix alone, who was contradicted by much of the evidence introduced in appellant's behalf, which tended to show that the charge against him was devised by her as a means of enabling her to leave the home of his parents of which she had apparently tired. It is not our province to pass upon the evidence. In view of our conclusion that appellant should have another trial, we refrain from any expression of opinion as to whether or not it was sufficient to authorize his conviction, deeming it only necessary to say that it justified the submission of the case to the jury.

It is insisted for appellant that his demurrer to the indictment should have been sustained because of its failure to allege that the crime charged was committed feloniously or with a felonious intent. The objection is without merit. The crime charged is purely statutory, and being defined by the statute, and the language of the statute followed by the indictment, an allegation of felonious intent was not essential. In respect to crimes that are felonious under the common law, the indictment, to be sufficient, must charge their commission feloniously or with a felonious intent, but the rule is different where the crime is purely statutory, and is defined by the statute itself. In such case the indictment is sufficient if it follows the language of the statute without the use of the term "feloniously" or the words ""felonious intent." Higgins v. Commonwealth, 94 Ky. 54, 21 S.W. 231; Commonwealth v. Lemon, 37 S.W. 61, 18 Ky. Law Rep. 480; Roberson's Crim. Law, § 392.

We cannot agree with appellant that it was error for the lower court to refuse him a continuance on account of the illness and absence of one of his counsel. It was not made to appear by his affidavit that the two attorneys who were present and conducted his defense were not equal to the task. Upon the contrary, the skill and fidelity with which they managed the case throughout the trial demonstrated their ability, and that appellant was not prejudiced by the absence of the third attorney.

We concur, however, in appellant's contention that the court should not have...