Nunley v. Com.
| Citation | 210 S.W.2d 962,307 Ky. 274 |
| Parties | NUNLEY v. COMMONWEALTH. |
| Decision Date | 27 April 1948 |
| Court | Court of Appeals of Kentucky |
Appeal from Circuit Court, Pike County; R. Monroe Fields, Judge.
Taulbee Nunley was convicted of seduction under promise of marriage and he appeals.
Judgment affirmed.
W. A Daugherty, of Pikeville, for appellant.
A. E Funk, Atty. Gen. and Squire N. Williams, Jr., Asst. Atty Gen., for appellee.
This is an appeal from a judgment of the Pike Circuit Court convicting appellant of the crime of seduction under promise of marriage and fixing his punishment at 2 years' imprisonment.
The basis of the appeal and the grounds upon which reversal of the judgment is sought are: (1) That the court erred in overruling the demurrer to the indictment; (2) The court erred in giving instruction No. 1 to the jury and in not instructing the jury as to the whole law of the case; (3) The verdict of the jury is flagrantly against the evidence and is the result of passion and prejudice on the part of the jury. These objections will be considered in the order given.
So much of KRS 436.010 under which this indictment is drawn, as is material, reads as follows:
Appellant contends that there is no such public offense known to the law as that stated in the accusatory part of the above indictment. He apparently bases this contention on the use of the word 'seducting' instead of the word 'seducing.' It is true that there is no such word as seducting in the English language according to Webster's Dictionary and, of course, the word seducing should have been used in the accusatory part of the indictment. However, it is clear that the substitution of the word seducting for the word seducing is a clerical misprint and could not have misled or have been prejudicial to the appellant. As was said by this court in the case of Gaither v. Commonwealth, 91 S.W. 1124:
'Misspelling, false grammar, and erroneous punctuation will not vitiate an instrument, statute, indictment, or contract, where its fair intent can be gathered from the whole text.' (Citing cases.)
We cannot conceive that appellant could have been misled by the misspelling of this word in the indictment and we hold that the document fairly and with reasonable certainty apprized him of the offense and the essential, particular circumstances with which he was charged. It is clear that there is no such variance between the crime charged in the accusatory part of the indictment and the crime charged in the descriptive part thereof as existed in the case of Privett v. Commonwealth, 233 Ky. 471, 26 S.W.2d 3, cited and relied on by appellant. In that case the accusatory part of the indictment accused the defendant of the common law offense of arson, which is the felonious burning of a dwelling, and the descriptive part charged him with committing the statutory offense of feloniously burning a store house, a different offense. Surely there is no such variation between the accusatory and descriptive part of the indictment in the present case, and both parts are substantially in the language of the statute quoted above.
(B) As a further attack on the sufficiency of the indictment, appellant contends that it fails to show that the offense charged was committed within 4 years preceding the indictment as required by subsection (4) of KRS 436.010, as set out above. He cites and relies on Garrison v. Commonwealth, 243 Ky. 253, 47 S.W.2d 1028, 1029. In that case, which was a prosecution for the same offense as in the present case, neither the accusatory nor the descriptive part of the indictment alleged that the offense had been committed within 4 years, and the date of its commission was not stated, the blanks, which would have shown the dates, not having been filled in. It was held that the indictment was defective, the court saying:
'It is the established rule that, where a prosecution may be barred by lapse of time, the indictment must allege that the offense was committed within the time limited, or within a period short of that time, or the date of the offense must be stated within that time.' (Italics ours.)
In the case at bar, the descriptive part of the indictment shows the offense to have been committed on February 6, 1947, and the indictment was returned at the February 1947 term of the Pike Circuit Court, presumably the same date, thus showing on its face that the offense was committed within the 4 year required statutory period. It was not necessary for the indictment to specifically allege that the offense was committed within 4 years of the finding of the indictment if it showed on its face the date the crime was committed and that date was, in fact, within the 4 year period. This court so held in the case of Commonwealth v. Dickerson, 258 Ky. 446, 80 S.W.2d 540, 541, in which case a violation of the same statute was involved and in which case the law was certified by this court. There we said:
'We therefore conclude that, although it is necessary for an indictment charging seduction to allege that the offense was committed within 4 years before the finding of the indictment, or to fix the date of the offense within that time, an indictment that alleges that the offense was committed on the day the indictment was returned is sufficient.'
(C) Appellant also insists that another fatal defect in the indictment is that it fails to state that the alleged seduction was accomplished not only under promise of marriage but by reason thereof. We do not think that this contention has any merit. It has always been held sufficient that the indictment follow the language of the statute. If the legislature had intended that the seduction must not only be 'under promise of marriage' but must be 'under the promise of marriage and by reason thereof', it would have said so. But it did not. We do not construe Jordan v. Commonwealth, 180 Ky. 379, 202 S.W. 896, 897, 1 A.L.R. 617, cited and relied on by appellant, to hold an indictment defective which does not specify that the act was done under promise of marriage and by reason thereof but rather that if it was so stated in the indictment, it must be so proved. It was said in that case:
'* * * it [is] incumbent upon the commonwealth to prove the essential facts charged in the indictment, which were: First, the act of seduction or intercourse; and, second, that it was accomplished under and by reason of a promise of marriage on his part.'
The case went off on other questions and is not authority for the statement that the indictment must allege not only that the seduction was under promise of marriage but by reason thereof. In the case of Garrison against the Commonwealth, supra, there was also some loose language employed which at first blush seems to lend credence to the idea that an indictment is defective which does not allege that the seduction was accomplished under and by reason of the promise of marriage. A careful examination of that case will show that it does not so hold. The defect in the Garrison indictment was the use of the words 'while under the promise of marriage.' This was pointed out in the later case of Scalf v. Commonwealth, 262 Ky. 469, 90 S.W.2d 729, in which the indictment followed the language of the statute, as indicated in the following language in the latter case:
We hold that an indictment worded, in the language of the statute, is sufficient and under it the essential elements of the crime, as defined in our decisions, can be proven.
We, therefore, conclude that the contention of the appellant that the indictment is defective is not sustained on any of the three grounds advanced by him.
'If you believe from the evidence in this case beyond a reasonable doubt that the defendant, Taulbee Nunley, in Pike County and before the finding...
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