Nider v. Commonwealth

CourtCourt of Appeals of Kentucky
Writing for the CourtCarroll
Citation140 Ky. 684
PartiesNider v. Commonwealth.
Decision Date22 November 1910
140 Ky. 684
Nider
v.
Commonwealth.
Court of Appeals of Kentucky.
Decided November 22, 1910.
Appeal from Campbell Circuit Court.

Page 685

BLAINE McLAUGHLIN for Appellant.

JAMES BREATHITT, Attorney General; TOM B. McGREGOR, Assistant Attorney General, for the Appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Reversing.


Appellant was convicted of the crime of carnally knowing Cecil Luzader, a female under the age of sixteen years, the indictment being found under section 1155 of the Kentucky Statutes, reading:

Page 686

"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."

It is indispensible to sustain a conviction under this statute that there should be some evidence of penetration, however, slight. White v. Commonwealth, 96 Ky., 180; Brauer v. State, 25 Wisconsin, 413; Bishop's Criminal Law, Vol. 2, Sec. 1127, et seq.; Wharton's Criminal Law, Vol. 1, Sec. 554. But there is no evidence in the record in support of this vital point. On the contrary, the child as well as the physician who examined her testify positively that there was none. With the evidence in this condition appellant could not be subjected to the penalty fixed by the statute. There was, however, sufficient evidence to sustain a conviction for the attempt to have carnal knowledge of the prosecutrix if the attempt to commit this crime is punishable, as it is shown by the evidence that the accused did everything necessary to the accomplishment of the complete offense except in the particular mentioned. This being so, the question comes up, can a person indicted for an offense against this statute be convicted of the attempt to unlawfully carnally know a female under the age of sixteen years, or an idiot, with her consent. This statute is a lower degree of the offense of rape, and is included in it. Fenston v. Commonwealth, 82 Ky., 549. It was designed to secure the punishment of persons who with the consent of the infant female, or idiot, had carnal knowledge of her. Its enactment became necessary because, in rape at common law as well as under our statute, which is merely declaratory of the common law, force or violence is an essential ingredient of the offense. Under an indictment for rape there can be no conviction unless its accomplishment be by force or without the consent or against the will of the female. So that except for this statute a person who had carnal knowledge of the female, however young in years, could not be punished if the act was committed with the consent of the female, unless it be that it was an offense at common law to have carnal knowledge of a female child even with her consent. If this was an offense at common law, then it would also be an offense in this State, even if we had no statute on that subject, as the common law of England and all acts of parliament made in aid thereof have since the organization of this State been a part of the body not only of the criminal but the civil law, except

Page 687

where it has been abrogated or superseded by statute, or is repugnant to the spirit of our laws or the public policy of the State. And so it is that when there is a wrong to be punished, whether it be great or small, or a right to be redressed, whether it be big or little, and no statute law of this State can be found that will afford the punishment or offer the remedy, we turn to the common law for relief. And if we can find there a principle that is applicable to the situation or condition, its aid may be invoked and under it the wrong punished or the injury redressed. How the common law came to us can be seen in section 233 of the Constitution, reading:

"All laws which, on the first day of June, one thousand seven hundred and ninety-two, were in force in the State of Virginia, and which are of a general nature and not local to that State, and not repugnant to this Constitution, nor to the laws which have been enacted by the General Assembly of this Commonwealth, shall be in force within this State until they shall be altered or repealed by the General Assembly."

And by an examination of the cases of Ray v. Sweeney, 14 Bush, 1; Aetna Ins. Co. v. Commonwealth, 106 Ky., 864; Lathrop v. Bank of Scioto, 8 Dana, 114, in which will be found a full history and exposition of the subject.

That the crime we are considering was an offense at common law is shown by an act of parliament passed in the reign of Queen Elizabeth providing that:

"Carnal knowledge of any woman-child under the age of ten years is made a felony, without benefit of clergy, and this without any reference to the consent or non-consent of the child, which is, therefore, considered immaterial." Russell on Crimes, Vol. 1, page 693; Hales Pleas of the Crown, Vol. 1, page 630; Blackstone's Commentaries, Vol. 4, page 210.

That this parliamentary statute is a part of the common law in force in this State, except to the extent that it has been modified by section 1155 of the Kentucky Statutes, is apparent from a consideration of the section of the Constitution and the cases before mentioned. It was passed in aid of the...

To continue reading

Request your trial
7 practice notes
  • Johnson, Governor v. Commonwealth
    • United States
    • United States State Supreme Court (Kentucky)
    • August 26, 1942
    ...v. Sweeney, 14 Bush 1, 2, 29 Am. Rep. 388; Aetna Ins. Co. v. Commonwealth, 106 Ky. 864, 51 S.W. 624, 45 L.R.A. 355; Nider v. Commonwealth, 140 Ky. 684, 131 S.W. 1024, Ann. Cas. 1913E, 1246; Campbell v. W.M. Ritter Lumber Co., 140 Ky. 312, 131 S.W. 20, 140 Am. St. Rep. To state the same thin......
  • State v. Burden
    • United States
    • Superior Court of New Jersey
    • May 8, 1985
    ...her consent became a crime in England by statute, which statute was adopted as part of the common law in America. Nider v. Commonwealth, 140 Ky. 684, 131 S.W. 1024 (Ct. of Page 154 New Jersey, as well as most other states, by statute classifies the crime of rape by degrees, which vary with ......
  • Commonwealth v. Donoghue
    • United States
    • Court of Appeals of Kentucky
    • June 23, 1933
    ...388; Aetna Insurance Company v. Commonwealth, 106 Ky. 864, 51 S.W. 624, 627, 21 Ky. Law Rep. 503, 45 L. R. A. 355; Nider v. Commonwealth, 140 Ky. 684, 131 S.W. 1024, Ann. Cas. 1913E, 1246; Coleman, Auditor, v. Reamer's Executor, 237 Ky. 603, 36 S.W.2d 22, 23. The claim that in the year 1607......
  • McEwing v. State
    • United States
    • Supreme Court of Tennessee
    • April 4, 1916
    ...of a criminal design with intent Page 690 to commit, but which falls short of active consummation" — citing Nider v. Commonwealth, 140 Ky. 684, 131 S. W. 1024, 1026, Ann. Cas. 1913E, 1246; State v. Doran, 99 Me. 329, 59 Atl. 440, 441, 105 Am. St. Rep. 278 (quoting 1 Bish. Cr. Law, § 72......
  • Request a trial to view additional results
7 cases
  • Johnson, Governor v. Commonwealth
    • United States
    • United States State Supreme Court (Kentucky)
    • August 26, 1942
    ...v. Sweeney, 14 Bush 1, 2, 29 Am. Rep. 388; Aetna Ins. Co. v. Commonwealth, 106 Ky. 864, 51 S.W. 624, 45 L.R.A. 355; Nider v. Commonwealth, 140 Ky. 684, 131 S.W. 1024, Ann. Cas. 1913E, 1246; Campbell v. W.M. Ritter Lumber Co., 140 Ky. 312, 131 S.W. 20, 140 Am. St. Rep. To state the same thin......
  • State v. Burden
    • United States
    • Superior Court of New Jersey
    • May 8, 1985
    ...her consent became a crime in England by statute, which statute was adopted as part of the common law in America. Nider v. Commonwealth, 140 Ky. 684, 131 S.W. 1024 (Ct. of Page 154 New Jersey, as well as most other states, by statute classifies the crime of rape by degrees, which vary with ......
  • Commonwealth v. Donoghue
    • United States
    • Court of Appeals of Kentucky
    • June 23, 1933
    ...388; Aetna Insurance Company v. Commonwealth, 106 Ky. 864, 51 S.W. 624, 627, 21 Ky. Law Rep. 503, 45 L. R. A. 355; Nider v. Commonwealth, 140 Ky. 684, 131 S.W. 1024, Ann. Cas. 1913E, 1246; Coleman, Auditor, v. Reamer's Executor, 237 Ky. 603, 36 S.W.2d 22, 23. The claim that in the year 1607......
  • McEwing v. State
    • United States
    • Supreme Court of Tennessee
    • April 4, 1916
    ...of a criminal design with intent Page 690 to commit, but which falls short of active consummation" — citing Nider v. Commonwealth, 140 Ky. 684, 131 S. W. 1024, 1026, Ann. Cas. 1913E, 1246; State v. Doran, 99 Me. 329, 59 Atl. 440, 441, 105 Am. St. Rep. 278 (quoting 1 Bish. Cr. Law, § 72......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT