McCreary v. Com.

• Decision Date: 29 April 1914
• Citation: 158 Ky. 612,165 S.W. 981
• Parties: McCREARY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

165 S.W. 981

158 Ky. 612

McCREARY v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 29, 1914

Appeal from Circuit Court, Barren County.

J. C McCreary was convicted of having carnal knowledge of a female under 16 years of age, and he appeals. Reversed, with directions to grant a new trial.

Allen Sandidge, of Glasgow, Sims & Rodes, of Bowling Green, and Porter & Sandidge, of Glasgow, for appellant.

James Garnett, Atty. Gen., Chas. H. Morris, Asst. Atty. Gen., and Virgil H. Baird and Baird & Richardson, all of Glasgow, for the Commonwealth.

TURNER J.

Appellant a man 50 years of age, was indicted, tried, and convicted in the Barren circuit court, charged with having carnal knowledge of a female under 16 years of age, under the provisions of section 1155 of the Kentucky Statutes, which are as follows: "Whosoever shall 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 evidence disclosed that in August, 1909, the defendant together with his married daughter, went to Louisville with the avowed purpose of securing from some orphans' home a girl to live with appellant and his wife, and that, after visiting two or three institutions of this character, they went to the Baptist Orphans' Home, and he and his daughter there selected a child, named Mattie Dankhoff, then between 12 and 13 years of age, and arranged with the authorities of the institution to send her to his home at Cave City, in Barren county, which was done on or about the 1st of September, 1909.

The girl testifies that about two weeks after she reached appellant's home he begun to hug and kiss her and "make over" her, and continued to do so for some months, and that, when she had been there about four months, one night after she had gone to bed in a room upstairs where she and appellant and his wife all slept, appellant, in the absence of his wife, came to the room and came to her bed and inserted some sort of a steel instrument in her person, and, after leaving it there about five minutes, withdrew it, and then got in bed and had intercourse with her; that at the time she was about 13 years of age, and he continued these relations with her as often as three or four times a week, when the opportunity offered, until May or June, 1913.

The indictment charges the commission of the crime on the ___ day of 1912, but the commonwealth proved the commission of the offense in 1909 or 1910, as above stated.

The first error complained of by appellant is that the indictment charges the commission of the offense at a time when the Indeterminate Sentence Law was in effect, and that the jury should have been instructed under that law, although the evidence showed that the crime for which he was tried was committed in 1909 or 1910, before the Indeterminate Sentence Law went into effect.

Section 129 of the Criminal Code of Practice provides: "The statement in the indictment, as to the time at which the offense was committed, is not material further than as a statement that it was committed before the time of finding the indictment, unless the time be a material ingredient in the offense."

In charging a felony, time is not material, for the commonwealth may prove the commission of the offense at any time prior to the finding of the indictment, and it has been held by this court that the defendant must be tried under the law in effect at the time the offense was committed. Miller v. Commonwealth, 154 Ky. 205, 157 S.W. 373; Hunn v. Commonwealth, 143 Ky. 143, 136 S.W. 144.

Instruction No. 1 is complained of by appellant, because, as alleged, it gave undue prominence to certain testimony of the prosecuting witness, and singled out and referred specifically to certain parts of her testimony. The instruction in full is as follows: "If you believe from the evidence, to the exclusion of a reasonable doubt, that in Barren county, about four months after the witness Mattie Dankhoff first went to the home of the defendant, and on the occasion when she testified he first inserted an instrument into her person, the defendant, J. C. McCreary, had carnal knowledge of said Mattie Dankhoff, and she was then under 16 years of age, you should find the defendant guilty of carnally knowing a female under 16 years old, and fix his punishment at confinement in the penitentiary for any time not less than 10 years nor more than 20 years."

It was necessary for the court to require the commonwealth to select one certain time at which appellant was alleged to have committed this crime, and the time selected was the one referred to in the instruction, and the reference in the instruction to the occasion when the prosecuting witness testified he inserted the instrument in her person was only used so that the jury might be confined in its verdict to the crime alleged to have been committed upon that particular occasion.

The prosecuting witness was permitted by the court to testify over defendant's objection, not only to numerous acts of intercourse between them, other than that upon which he was being tried, extending over a period of 3 1/2 years, but in many instances permitted her to go into the details as to the time,...