Roseberry v. Commonwealth

• Decision Date: 15 January 1929
• Citation: 227 Ky. 387
• Parties: Roseberry v. Commonwealth.
• Court: Supreme Court of Kentucky

227 Ky. 387

Roseberry v. Commonwealth.

Court of Appeals of Kentucky.

Decided January 15, 1929.

1. Abduction. — If female has sufficient mind to enable her to consent, and she does consent, to detention for purpose of carnal knowlege, defendant is not guilty of detaining her against her will for that purpose, in violation of Ky. Stats., sec. 1158, irrespective of age of female.

2. Abduction. — Conviction, under Ky. Stats., sec. 1158, for detention of 12 year old female against her will for purpose of carnal knowledge, held not justified, under evidence that girl consented, since detention must be against will of female, and it is immaterial that defendant may have committed crime of statutory rape, under section 1155.

Appeal from Boyd Circuit Court.

A.N. CISCO for appellant.

J.W. CAMMACK, Attorney General, and GEORGE H. MITCHELL, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE WILLIS.

Reversing.

George Roseberry was convicted of the crime denounced by section 1158, Kentucky Statutes, and sentenced to serve two years in the penitentiary. He was denied a new trial, and has appealed to this court assigning several reasons for a reversal of the judgment. The case is an unsavory one, and we shall state the facts only so far as is necessary to determine the legal questions presented.

The indictment charged that the appellant did unlawfully and feloniously detain Ellen Boone, a female over the age of 12 years, against her will and consent, with intent to have carnal knowledge with her himself. The testimony showed that Ellen Boone was about 12 years of age, and resided with her mother, brother, and sister in a three-room cottage. Roseberry, an uninvited visitor, insisted upon remaining overnight, and was directed to sleep with Roy Boone, a young man about 22 years of age. Ellen Boone was sleeping in the same room in another bed. The mother and older daughter were occupying a bed in the adjoining room. Ellen Boone testified that during the night Roseberry got in bed with her, remained until morning, had some bad talk with her, and communicated to her a loathsome disease. She made no objection or outcry, and, when asked why she did not do so, stated that she did not want to, indicating consent to the occurrence. The court submitted the case to the jury under an instruction which required them to find that Ellen Boone was detained against her will and consent, proceeding, no doubt, upon the theory that Ellen Boone was too young...