Morrison v. Commonwealth

• Decision Date: 15 December 1922
• Parties: MORRISON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

246 S.W. 128

197 Ky. 107

MORRISON v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 15, 1922

Appeal from Circuit Court, Logan County.

George Morrison was convicted of carnally knowing a female under the age of 16 years, and appeals. Affirmed.

Coleman Taylor and O. M. Smith, both of Russellville, for appellant.

Charles I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty Gen., for the Commonwealth.

SAMPSON J.

Appellant Morrison, was indicted in the Logan circuit court for the crime of carnally knowing a female under the age of 16 years under section 1155, Kentucky Statutes, and convicted of that charge, and his punishment fixed at 10 years' confinement in the state penitentiary. The crime is charged to have been committed in July, 1921, and the trial was had in May, 1922. At the time the crime is charged to have been committed, appellant, Morrison, was 19 years of age, and the prosecuting witness, Barbara Lewis, was between 15 and 17 years of age. She says she was between 15 and 16, and other witnesses say she was between 16 and 17 years of age.

The defendant denied that he had carnal knowledge of Barbara Lewis, but admitted that he knew she was a girl of bad moral character, and offered to prove by several witnesses individual instances of sexual intercourse, and did prove by one group of witnesses that she was a girl of bad moral reputation.

Appellant makes four contentions: (1) Section 1155 of Carroll's Edition of Kentucky Statutes is unconstitutional; (2) the court erred in refusing him a continuance on his motion supported by affidavit; (3) the acts of the Kentucky Legislature of 1922 (Laws 1922, c. 17) with reference to this crime mitigate the rigor of the law in cases where the defendant is an infant and the prosecuting witness over 16 years of age, and no instruction was given whereby appellant could have the benefit of the lower penalty; (4) the court erred in not sustaining appellant's motion for a directed verdict.

We will consider the contentions in the order set forth:

1. Section 1155, Kentucky Statutes, reads:

"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."

This act was passed in 1906 as an amendment to a then existing law upon the same subject. It is said by counsel for appellant that section 1155 is violative of section 51 of the Constitution of Kentucky, and is therefore inoperative and void. This contention is based upon the fact that the title to the act of 1906 (chapter 24), under which this appellant was prosecuted, reads "An act to amend section 1155 of Kentucky Statutes." Section 51 of the Constitution reads:

"No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length."

Many times have we held acts of the General Assembly in conflict with this provision of our Constitution. But in considering this section of our Constitution in relation to section 1155 of the Statutes, we have, in the case of Commonwealth of Kentucky v. McNutt, 133 Ky. 702, 118 S.W. 978, and also in the case of Ex parte City of Paducah, 125 Ky. 511, 101 S.W. 898, 31 Ky. Law Rep. 170, held the title of the act involved to be...