Kayes v. Commonwealth
| Decision Date | 21 October 1927 |
| Citation | 298 S.W. 1096,221 Ky. 474 |
| Parties | KAYES v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Mercer County.
Herman Kayes was convicted of having carnal knowledge of a girl under the age of 18 years but over 16, and he appeals. Reversed with directions.
C. E Rankin, of Harrodsburg, and Marshall Duncan, of Springfield for appellant.
Frank E. Daugherty, Atty. Gen., and Moorman Ditto, Asst. Atty Gen., for the Commonwealth.
The appellant was indicted and convicted for a violation of section 1155 of the Kentucky Statutes, chapter 17 of the Acts of 1922; his punishment being fixed at two years in the penitentiary.
The only errors relied upon by him for a reversal of the judgment are errors in the instructions and improper remarks by the attorney for the commonwealth in his closing argument to the jury.
The indictment charges that on the _______ day of ______, 1926 and before its finding, the appellant, then over 21 years of age, had carnal knowledge of one Annie May Clark with her consent; she at the time being under 18 years of age but over 16. The prosecuting witness, Annie May Clark, testified that the appellant first had sexual intercourse with her the latter part of February or the first part of March, 1926. In addition to the act of intercourse thus claimed, the prosecutrix further testified that she and appellant continued to have illicit relations until some time in June, 1926.
The court was not requested to admonish the jury that the testimony concerning these other occasions should be considered by them only for the purpose of corroborating the evidence of the main act, if the jury should regard it as corroborative, and for no other purpose, nor was the commonwealth required to elect as to which act it would rely upon for a conviction. Where no specific date is alleged in the indictment on which it is claimed the act complained of occurred, and the commonwealth introduces evidence concerning numerous acts and makes no formal election as to which it will rely upon for a conviction, the law elects the act concerning which evidence is first introduced. Earl v. Commonwealth, 202 Ky. 726, 261 S.W. 239; Gilbert v. Commonwealth, 204 Ky. 505, 264 S.W. 1096.
The court, in its instructions to the jury, gave an instruction which is almost identical with the instruction condemned by this court in the Earl Case, supra. The instruction failed to limit the jury to any particular act of sexual intercourse by appellant with the prosecuting witness, and it is therefore prejudicially erroneous.
The commonwealth sought to prove that the prosecuting witness was pregnant, but this evidence was excluded. This evidence was competent, and should have been admitted. The trial court no doubt based its action on the rule announced in Jordan v Commonwealth, 180 Ky. 379, 202 S.W. 896, 1 A. L. R. 617. That was a seduction case, and the reason for the rule in such cases is readily apparent. One of the essential elements of the crime of seduction is that the act of intercourse was accomplished by reason of a promise of marriage by the accused. Evidence as to the pregnancy of the prosecutrix can throw no light on the issue as to whether or not she was seduced under a promise of marriage, and whether or not she became pregnant as a result of the act of seduction is wholly immaterial. In prosecutions under ...
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