Madden v. Commonwealth

• Decision Date: 25 April 1924
• Citation: 202 Ky. 782,261 S.W. 273
• Parties: MADDEN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

261 S.W. 273

202 Ky. 782

MADDEN v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 25, 1924

Appeal from Circuit Court, Bell County.

Ph be Madden was convicted of unlawfully having sexual intercourse with a male child under age of 18 years, and appeals. Reversed, with directions to grant new trial.

M. G Colson and W. J. Stone, both of Pineville, for appellant.

Frank E. Daugherty, Atty. Gen., and Chas. F. Creal, Asst. Atty Gen., for the Commonwealth.

THOMAS J.

On March 10, 1923, the grand jury of Bell county returned an indictment against appellant and defendant therein, Ph be Madden, charging her with the offense denounced by section 1155 of the Kentucky Statutes, as amended by act of 1922. Chapter 17, page 65, of the Acts for that year. Upon her trial under a plea of not guilty, she was convicted and sentenced to serve a term of 5 years in the state penitentiary, and her motion for a new trial having been overruled she prosecutes this appeal. Two of the grounds relied on as error in the motion for a new trial, and argued on the appeal, are (1) the insufficiency of the indictment and error of the court in overruling the demurrer thereto and (2) error in the instructions of the court. It is also argued as a third ground for reversal that the court erroneously admitted incompetent evidence introduced by the commonwealth, but we are not inclined to sustain counsel in that contention, and will confine this opinion to a consideration of grounds (1) and (2).

A sufficient answer to ground (1) is that the record fails to show that any demurrer was ever filed to the indictment, but notwithstanding that fact, if it failed to charge a public offense, it was the duty of the court to arrest the judgment and, unless resubmitted or otherwise cured, defendant could not be tried and punished thereunder. We, however, find no fault with the indictment in this case. In its entirety (omitting caption and signature) it says:

"The grand jury of Bell county, in the name, and by the authority, of the commonwealth of Kentucky, accuse Ph be Madden of the crime of unlawfully and willfully having sexual intercourse with a male child under the age of 18 years, not her husband, committed in manner and form as follows, viz.: The said Ph be Madden in the state and county aforesaid, and on the _____ day of _____ 1923 and within _____ months before the finding of this indictment, did unlawfully have carnal knowledge of and sexual intercourse with Charlie Baker, a male person, who was at the time of such acts under the age of 18 years, against the peace and dignity of the commonwealth of Kentucky." Prior to the amendment of 1922, which took effect on the 13th day of June of that year, the offense could only be committed by a male upon a female who was under the prohibited age, which was then 16 years, or an idiot; but the amendment, in the generic offense which it described, raised the age of consent to 18 years, and left out entirely the prohibition as to committing the act upon the body of an idiot, and also made the statute applicable to both sexes, and made it unlawful for a member of either sex to commit the offense upon the body of the other not his or her spouse when the victim was under the prohibited age.

The generic offense, as described in the amendment, was couched in these words:

"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."

That language was followed by a number of subsections relating to the punishment and prescribing it according to the age (below the maximum of 18 years) of the prosecuting witness and likewise measuring the punishment (subsection 5) according to the age of the offender. The crime denounced by the statute, without any aggravating facts increasing the punishment, was specifically charged in the indictment, and under the well-known rules of criminal practice, adhered to by this court, the defendant could be convicted and punished for the crime stated in the indictment, and all other ones growing out of the same act, of a lower degree; an illustration of which is that under an indictment for murder the defendant may be convicted of all degrees of homicide lower than that crime, notwithstanding the particular elements of the lower degree or degrees are not set out or charged in the indictment. See Rose's Criminal Law, vol. 1, § 295; Evans v. Commonwealth, 79 Ky 414, and numerous other domestic cases which might be cited continuing up to the present time. Since, therefore, the indictment charged the offense described in the statute, it charged a public one, and was not demurrable, although it was not tested in that manner. We therefore conclude that ground (1) is without merit.

Subsections 1 and 2 of the amendment provide for an increased punishment of the offender according to the age of his victim, and in fact created higher crimes than the one contained in the statutory definition of the generic one. Subsection 1 prescribed the punishment of "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," if the victim was below 12 years of age; while subsection 2 prescribed a punishment of "imprisonment in the state penitentiary for not...