Moss v. Com.

• Decision Date: 24 May 1910
• Citation: Moss v. Com., 138 Ky. 404, 128 S.W. 296 (Ky. Ct. App. 1910)
• Parties: MOSS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

128 S.W. 296

138 Ky. 404

MOSS v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 24, 1910

Appeal from Circuit Court, Graves County.

"To be officially reported."

Pete Moss was convicted of carnally knowing a female under the age of 16 years, and he appeals. Reversed.

Webb &amp Weaks, for appellant.

Jas Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen for the Commonwealth.

CARROLL J.

Under an indictment charging him with carnally knowing a female under the age of 16 years the appellant, Moss, was convicted. He asks a reversal of the judgment for alleged errors committed by the court in failing to grant a continuance, in admitting incompetent evidence, and in misinstructing the jury.

The indictment was returned in March, 1909. Upon this indictment a bench warrant was issued and executed upon the accused, who gave bond for his appearance to answer the charge. At the July and November, 1909, terms of the court the case was continued, and at the March, 1910, term an order was made setting the case down for hearing on March 16th. When the case was called for trial on the 16th, the defendant, who was out on bail, failed to answer, and a bench warrant was issued, under which he was arrested and placed in jail on the 25th of March. It is shown by the orders of court that on March 25th the case was by agreement set for trial on April 8th. When the case was called for trial on April 8th, the defendant filed an affidavit for a continuance, on account of the absence of George Milligan, George Jackson, Frank Miller and Cora Miller. The affidavit stated that the appellant could prove by the absent witnesses that Audrey Ray, the prosecuting witness, was at least 21 years old, and was over 16 years at the time Moss was accused of having carnal knowledge of her body, and, further, that she appeared as large and looked as much like a woman in 1906 as she did in 1910. He further stated in the affidavit that he was arrested on March 25, 1910, and placed in jail, and had no opportunity to prepare his case, and was unable to procure counsel until March 28, 1910; that on the 28th of March, 1910, he took out a subp na for the absent witnesses, and placed it in the hands of the sheriff of Graves county, who failed to execute it because Milligan was a resident of the state of Tennessee, Frank Miller and Cora Miller residents of Marshall county, Ky. and George Jackson confined to his home with sickness. He further averred that if a continuance was granted he could secure the presence of Milligan to testify on the next trial of the case, and also the attendance of Jackson and the Millers; that he did not know that the Millers did not live in Graves county until April 8, 1910. Upon the commonwealth's objection, a continuance was refused, and the affidavit was not read as the evidence of the absent witnesses on the trial.

It is earnestly insisted that, as the chief defense...