McCreary v. Commonwealth

• Citation: 163 Ky. 206,173 S.W. 351
• Parties: MCCREARY v. COMMONWEALTH.
• Decision Date: 26 February 1915
• Court: Court of Appeals of Kentucky

173 S.W. 351

163 Ky. 206

MCCREARY v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 26, 1915

Appeal from Circuit Court, Barren County.

J. C McCreary was convicted of carnally knowing a female under 16 and he appeals. Affirmed.

See also, 158 Ky. 612, 165 S.W. 981.

Sims, Rodes & Sims, of Bowling Green, and W. L. Porter, of Glasgow, for appellant.

James Garnett, Atty. Gen., and Chas. H. Morris, Asst. Atty. Gen., for the Commonwealth.

HURT J.

The appellant, Dr. J. C. McCreary, who was a physician residing at Cave City, in Barren county, Ky. and a man about 50 years of age, was indicted at the July term, 1913, of the Barren circuit court, and charged with the offense of carnally knowing a female under the age of 16 years, which is denounced by the provisions of section 1155 of the Kentucky Statutes. This statute is as follows:

"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 indictment preferred against appellant is as follows:

"The grand jury of Barren county, in the name and by the authority of the commonwealth of Kentucky, accuse J. C. McCreary of the crime of carnally knowing a female under the age of 16 years, which was committed as follows, to wit: Heretofore, to wit, on the ______ day of ______, 1912, and in the county and commonwealth aforesaid, the said J. C. McCreary did then and there unlawfully and feloniously carnally know Mattie Dankhoff, a female under the age of 16 years, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the commonwealth of Kentucky.

Frank E. Daugherty,

Commonwealth's Attorney."

At the November term, 1913, of the Barren circuit court, the appellant was tried upon this indictment, and the trial resulted in his conviction, and the court, in accordance with the verdict of the jury, sentenced him to confinement in the penitentiary for a period of 10 years.

It will be observed that the indictment charges the commission of the crime on the ______ day of ______, 1912. Upon this trial the prosecuting witness, Mattie Dankhoff, gave testimony conducing to show that the appellant first had sexual intercourse with her in December, 1909, or January, 1910, and this time was particularly designated as being the time when the appellant inserted some kind of a steel instrument into her person, and then immediately afterwards had sexual intercourse with her. She also gave evidence that the appellant after that time had sexual intercourse with her whenever he had an opportunity, and from two to three times a week, until the latter part of June or 1st of July, 1913, when she gave information to a neighbor woman of the alleged facts above stated, and within a day or two after, by the advice of neighbors, and through their offices, she left the house of the appellant, where she had been residing since about the 1st of September, 1909.

Upon this trial the commonwealth's attorney, neither before the trial commenced, nor at any time during the progress of the trial, made any formal election of the particular act of sexual intercourse which was had with the girl by the appellant as the occurrence upon which he would rely for conviction, and as being the one charged in the indictment.

The trial court, however, gave instructions directing the jury to find appellant guilty of the first act of sexual intercourse with the witness, if it should believe him to be guilty of that charge to the exclusion of a reasonable doubt, and confined the jury in its finding to that particular act. The court also admonished the jury that it could consider the proof of other acts of sexual intercourse given in the evidence, and subsequent to the first one, only for the purpose of corroborating the evidence conducing to show the appellant guilty of the first act, if it did tend to corroborate, and for no other purpose. In this the trial court seems to have been correct; as, upon a trial upon a charge of this kind, and under an indictment such as in this case, and where different acts of sexual intercourse between the defendant and the complaining witness are in evidence, and the attorney for the commonwealth fails to formally make an election as to which one of the acts he will rely upon for conviction, the law will make an election for him, and will elect the act about which substantive proof is first introduced for the purpose of a conviction.

After the verdict of the jury, the appellant filed grounds and entered a motion for a new trial, which being overruled, he appealed to this court.

Because of matters which are unnecessary to be stated in this opinion, this court adjudged that the verdict of the jury and judgment of the court appealed from be reversed, and that a new trial be given the appellant upon the charge made in the indictment. The former opinion of this court will be found in 158 Ky. 612, 165 S.W. 981.

Upon a return of the case to the court below, the indictment was again called for trial at the November term, 1914, of the Barren circuit court, and after the jury had been impaneled, and before the introduction of any evidence, the attorney for the commonwealth announced that he had elected to prosecute the defendant upon the charge contained in the indictment, and alleged that the act of sexual intercourse had with the witness Mattie Dankhoff by the appellant upon which he would rely for conviction was committed on the ______ day of December, 1911. The appellant, by counsel, objected to this election, and alleged as grounds for the objection that on the first trial of this case, in November, 1913, that the commonwealth's attorney elected to try the defendant for the act of sexual intercourse had with the witness Mattie Dankhoff in the latter part of December, 1909, or 1st of January, 1910, the first act of sexual intercourse had with her by the appellant. This objection was overruled, to which the appellant at the time excepted. The trial then proceeded, and in offering the evidence for the prosecution, proof was first introduced of an alleged act of sexual intercourse had with the witness Dankhoff by appellant in December, 1911. Evidence was further introduced, conducing to show that the appellant had been guilty of various acts of sexual intercourse with the witness prior to that time, extending back for a period of about 2 years, and also subsequent to December, 1911, and up to about July, 1913. The witness Dankhoff was permitted to state, over the objection of the appellant, that in the month of June, 1913, when she went upon a visit to her brother and sister at Bagdad, Ky. that the appellant pretended to his wife that he had been called to Bowling Green, Ky. to visit a patient, and left Cave City in the evening, and went by train to Bowling Green, where he directly took a train for Louisville, passing through Cave City late in the night, and that on the next morning, when she arrived in Louisville, on her way to Bagdad, the appellant met her upon her alighting from the train, and after taking her to a moving picture show, and to a restaurant, carried her to a hotel, where he had sexual intercourse with her. The appellant moved the court to exclude the evidence in regard to this occurrence from the consideration of the jury, which motion was overruled, and the appellant excepted.

It also developed in the proof that at the time of the alleged act of sexual intercourse had in the hotel at Louisville Mattie Dankhoff was then over the age of 16 years.

The court, by its instructions, confined the jury to a consideration of the guilt of the appellant of the alleged act of sexual intercourse with the witness, at the time elected by the prosecution to be relied upon, on the ______ day of December, 1911, and admonished the jury that they were only permitted to consider the proof of other acts of sexual intercourse had by appellant with the girl, for the purpose of corroborating the evidence introduced to prove the guilt of the appellant of the act upon the ______ day of December, 1911, if it did tend to corroborate such proof, and for no other purpose.

Other objections were made by counsel for the appellant to evidence introduced upon the trial, which will be noticed further in the opinion.

The result of this trial was the conviction of the appellant by the jury, and his punishment being fixed at an indeterminate sentence of confinement in the penitentiary of not less than 10 years, nor more than 20 years. The appellant filed grounds for a new trial, which were overruled, and he again appeals to this court.

The first ground of reversal presented is the contention that the court erred in allowing the attorney for the commonwealth to make election as to the particular act to be relied upon for conviction of the appellant other than the one elected for him by the ruling of the court upon the first trial of the case. Counsel for appellant insists with considerable force of argument that, as the indictment contained but one offense, as provided in section 126 of the Criminal Code, the act upon which the state relied for conviction upon the first trial was the only offense embraced in the indictment, and that the election at that time had the effect of obliterating every other offense which might have been embraced in the indictment. It seems that the particular question, in a case of this kind, has never been passed upon by this court. In support of this contention, counsel for appellant cited Ellis v. Commonwealth, 3 Ky. Law Rep. 251; 10 Enc. Pleading and Practice, 553, § 7; State v. Hilberg, 22 Utah 27, 61 P. 215; People v. Jenness, 5 Mich. 306; People v. Clark, 33 Mich. 112; Elam v. State, 26...