Render v. Commonwealth

• Decision Date: 05 December 1924
• Citation: 206 Ky. 1,266 S.W. 914
• Parties: RENDER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

266 S.W. 914

206 Ky. 1

RENDER v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 5, 1924

Appeal from Circuit Court, Ohio County.

Robert Render was convicted of having had carnal knowledge of a girl under 18 years of age, and he appeals. Affirmed.

Heavrin & Heavrin and Rone & Howard, all of Hartford, for appellant.

Frank E. Daugherty, Atty. Gen., Chas. F. Creal, Asst. Atty. Gen Grover H. Cary, Com. Atty., of Calhoun, and Otto C. Martin Co.

Atty and Barnes & Smith, all of Hartford, for the Commonwealth.

DIETZMAN J.

The appellant was indicted and convicted for a violation of section 1155 of the Kentucky Statutes, as amended by chapter 17 of the Acts of 1922; his punishment being fixed at two years in the penitentiary, the minimum for the offense of which he was charged. The errors relied upon by him to secure a reversal of that judgment may be grouped under four heads: (1) Error in instructions; (2) error in admission and exclusion of evidence; (3) misconduct of the commonwealth's attorney; (4) nonsupport of the verdict by the evidence.

The indictment charges that "on the _______ day of ______, 1923," and before its finding, the appellant, then over 21 years of age, had carnal knowledge of one Ida Marie Bennett, with her consent; she then being under eighteen years of age, but over sixteen. The evidence of both the commonwealth and of the appellant showed that in the summer of 1923 the commonwealth's witnesses fixing the date, though not with positive assurance, as June 30th, and the appellant's witnesses fixing it, with more certainty, as May 26th, the prosecutrix, Ida Marie Bennett, who had known and been going with the appellant for a long time prior thereto, with a girl companion met, on a public road near her father's house, the appellant and a male companion. The reason for thus meeting was because the family of the prosecutrix objected to her keeping company with appellant. The two girls and the two boys then rode in appellant's Ford down to Beaver Dam, Ohio county, where the girl friend of the prosecutrix and the male companion of the appellant alighted and went into a picture show. It was then about 8 o'clock in the evening. The prosecutrix and the appellant then drove out the Beaver Dam and Cromwell Road some three or four miles and turned off into a byroad, where they remained until after the picture show had let out, a period of some two hours. On their return to Beaver Dam they found the couple which had gone to the picture show waiting for them, and the quartet then returned homewards. The girls alighted from appellant's machine before they reached the home of the prosecutrix, and finished their journey without their escorts in another machine. The above facts appear without dispute. The prosecutrix, however, further testified that while she and appellant were parked on the byroad as above set out, the act of intercourse complained of took place. The appellant denied this, and stated that at no time did he ever mistreat the prosecutrix, that at no time was he courting her, and that he only regarded her as one would a sister.

In addition to the act of intercourse thus claimed, the prosecutrix further testified that in the fall of 1922, in August of 1923, and at Thanksgiving of 1923, she and the appellant had also had illicit relations; but the court admonished the jury, as each of these other occasions were detailed, that the testimony concerning them should be received by the jury only for the purposes of corroborating the evidence of the main act of June 30, 1923, if the jury should regard it as corroborative and for no other purpose. Of this there is no complaint, nor could there be under the repeated decisions of this court. On the other hand, the appellant produced witnesses to show that, although he had been in the company of the prosecutrix on those other occasions and at the places designated by her in her testimony, yet there were no opportunities for committing the acts claimed by her to have occurred in the fall of 1922, or in August, 1923, and possibly on Thanksgiving, 1923, although the appellant's evidence as to this last date is vague and unsatisfactory. A great many character witnesses both for and against the prosecutrix and for the appellant were introduced and testified.

With this evidence before it, the court instructed the jury that if it believed from the evidence "to the exclusion of a reasonable doubt that in Ohio county, Ky. on or about June 30, 1923, and before the finding of this indictment, on or near the Beaver Dam and Cromwell public road," the appellant did the acts complained of, the jury should find him guilty. Complaint is made of this instruction because the court in fixing the time used the expression "on or about June 30, 1923." It is argued that where, as here, no specific date is alleged in the indictment on which it is claimed the act complained of occurred, and the commonwealth introduces evidence concerning numerous acts, and itself makes no formal election as to which act it will rely upon for a conviction, the law elects the act concerning which evidence is first introduced. In this counsel is correct. McCreary v. Commonwealth, 163 Ky. 206, 173 S.W. 351. It is then argued that, in failing to confine the jury by this instruction to the consideration only of June 30, 1923, that being the date on which the prosecutrix testified the facts first herein detailed occurred, the court permitted the jury to convict appellant for any of the other acts concerning which she testified. In this counsel is in error. No doubt the court was moved to instruct as he did, because the commonwealth's witnesses were not absolutely positive concerning the date on which the facts first narrated herein occurred, whereas the appellant's witnesses, with more certainty, fixed it at a time about a month earlier than did the commonwealth's witnesses. However, the jury could not have been and was not misled by the way the court fixed the time in the instruction. In the first place, the jury was strictly admonished by the court each time evidence was received concerning any act of intercourse other than the one first stated herein, that such evidence was purely corroborative and not substantive. In the second place, the date of an act is purely a matter of description, and if the transaction be so identified that a defendant can fairly know with what he is charged and so present his defense, and that a jury can reasonably know what it is considering, and that a court can intelligently pass judgment, then that is all that should be or is required. The exact date then, in a case of this character, becomes immaterial. In this case, when the jury was told that the transaction it should consider, if any, occurred "on or about June 30th, and on or near the Beaver Dam and Cromwell public road," the court unerringly indicated to it and to any reasonable and sensible man that it should find the defendant guilty only if it believed the prosecutrix's version of what transpired on the trip first mentioned herein. None of the other acts of intercourse...