Hunley v. Com.

• Citation: 290 S.W. 511,217 Ky. 675
• Parties: HUNLEY v. COMMONWEALTH.
• Decision Date: 21 January 1927
• Court: Kentucky Court of Appeals

290 S.W. 511

217 Ky. 675

HUNLEY v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 21, 1927

Appeal from Circuit Court, Pike County.

Harrison Hunley was convicted of carnally knowing a female under the age of 18 years, and he appeals. Reversed, with directions.

Picklesimer & Steele, of Pikeville, for appellant.

Frank E. Daugherty, Atty. Gen., and John P. Cusick, of Frankfort for the Commonwealth.

THOMAS J.

The appellant, Harrison Hunley, was indicted in the Pike circuit court charged with the offense denounced by section 1155 of the Kentucky Statutes as amended by chapter 17, Session Acts 1922, p. 65, commonly known as the "age of consent" statute. At his trial he was convicted and punished by confinement in the state penitentiary for two years. His motion for a new trial was overruled, and he has appealed and his counsel urge a number of grounds for a reversal of the judgment, but none of which do we regard as sufficiently material to merit our consideration except: (1) Insufficiency of the indictment; (2) erroneous instructions based on such insufficiency; and (3), incompetent evidence introduced by the commonwealth over defendant's objections--and which grounds we will consider in the order named.

1. Grounds (1) and (2) are in reality directed to the same complaint, and they will be disposed of together. Prior to the 1922 amendment the statute read:

"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."

The amendment increased the maximum age of the victim from 16 years to 18 years, and then proceeded to enact degrees of punishment measured by the respective ages of both victim and perpetrator. It also for the first time provided punishment for a female perpetrator and expressly enacted that the victim should not be the spouse of the perpetrator; and one objection to the indictment is that it did not charge that Carrie Hall, the victim in this case, was not the wife of defendant and which objection we think is well taken. The offense is purely a statutory one, and the rule is universal that in the accusatory paper charging such offenses the elements which the statute enacts as descriptive of the offense should be charged. We are aware that in the case of Commonwealth v. Landis, 129 Ky. 445, 112 S.W. 581, 33 Ky. Law Rep. 983, which was an indictment under the statute as it was before the 1922 amendment, held that no such negative statement was required in the indictment, but the statute as it existed at that time contained no such element of the offense. Likewise, in the case of Fuson v. Commonwealth, 210 Ky. 574, 276 S.W. 512, a similar conclusion was reached concerning an indictment under section 1158 of the statute, and which section does not contain as an element of the offense there described the statement that the victim shall not be the spouse of the perpetrator. Whether the omission of the accusatory paper to contain such negative statement would be grounds for reversing the judgment, especially where there was neither demurrer thereto nor motion in arrest of judgment, and when the facts conclusively showed that the victim was not the spouse of the perpetrator, is not necessary to be determined, since the judgment must be reversed for reasons hereinafter appearing.

The indictment in this case, omitting caption, signature, and indorsements, says:

"The grand jury of Pike county, in the name and by the authority of the commonwealth of Kentucky, accuse Harrison Hunley of the crime of carnally knowing and having sexual intercourse with a female under the age of 18 years, committed in manner and form as follows, viz.: The said Harrison Hunley, on the 8th day of October, 1924, in the county aforesaid, did unlawfully, willfully, and feloniously carnally know and have sexual intercourse with Carrie Hall, who was then and there a female under the age of 18 years at the time, against the peace and dignity of the commonwealth of Kentucky."

It will be observed that it follows strictly section 1155, supra, as it was before the amendment, except it charged the maximum age of the female victim as contained in that amendment (18 years) instead of the maximum age (16 years) as contained in the former statute.

The case of Hewitt v. Commonwealth, 216 Ky. 72, 287 S.W. 223, was one involving an indictment under the same amended section, and that indictment, as here, was apparently drawn under the old statute and without any recognition or notice of the changes made therein by the amendment. In the opinion in that case the relevant portions of the amendment, wherein degrees of punishment were prescribed in accordance with the respective ages of the parties, are inserted, and reference is made thereto as well as to the amendment for that information, since we have concluded to not incumber this opinion therewith. In the Hewitt opinion we held that there could be no felony punishment unless the alleged facts in the indictment authorized it under the section as amended, among which was that the age of the perpetrator must be alleged and proven to have been 21 years or over. If that had been done in this case and the negative statements were contained in the indictment, no doubt, under the Hewitt opinion, and also the one in the case of Madden v. Commonwealth, 202 Ky. 782, 261 S.W. 273, the defendant if proven guilty could have been punished by confinement in the penitentiary for not less than two nor more than 10 years, as prescribed in subsection 3 of the amendment, wherein the female victim is under the age of 18 years and over 16 years and the perpetrator as much as or more than 21 years old. But the indictment herein not having averred the age of the perpetrator, it was incompetent for the court, as held in the Hewitt Case, to submit any of the felony charges contained in the amendment. The ages of both perpetrator and victim, under that opinion, should be alleged, and the punishment submitted in the instructions should conform to the proof concerning such alleged ages, unless as in the Madden opinion a higher degree of the offense, and entailing a corresponding increased punishment, might be proven than was charged in the indictment, in which case the defendant could not be punished for any greater degree of felony than the one charged; but in no case could he or she receive a felony punishment in the absence of an allegation that his or her age was as much as or more than 21 years.

2. Under ground (3) a number of objections to evidence are urged, and various items of testimony are assailed, but none of which do we consider of sufficient materiality to merit our consideration except that relating to the introduction of the school census to prove the age of Carrie Hall, the victim. That testimony was furnished by Bessie Riddell Arnold, and we insert her examination in chief on that point, and it was:

"Q. Do you hold some official position in Pike county? A. Yes, sir; deputy county court clerk.

Q. As such are you the custodian of the school census record kept in that office? A. Yes, sir.

Q. Have you a record showing the day and year that this prosecuting witness, Carrie Hall, was born? (Objected to; overruled; except.) A. Yes, sir.

Q. What is that record? A. Of date August 1, 1909."

On her cross-examination it was developed that she did not know who made and returned the list to the county court clerk's office, nor by whom it was made, or who furnished the information to the list taker or enumerator at the time it was made; although it later appears that at the time the list was taken in 1920, Carrie Hall was living with an uncle and not with her mother. So that the presumption would be that the uncle furnished the information to the enumerator, but whether so or not it conclusively appears that neither parent did so.

We are aware of the rule that under some circumstances and conditions a public record may be introduced to establish the facts it contains when it is shown that it was made in the due course of official duties by a person upon whom the law enjoined the duty to do so, and when the specific fact sought to be established was one of the primary purposes in requiring the record to be made. Hence,...