Salyers v. Com.
| Decision Date | 27 February 1953 |
| Parties | SALYERS v. COMMONWEALTH. |
| Court | United States State Supreme Court — District of Kentucky |
Montgomery & Montgomery, Liberty, for appellant.
J. D. Buckman, Jr., Atty. Gen., and John B. Browning, Asst. Atty. Gen., for appellee.
Appellant, Luther Salyers, was convicted of incest and sentenced to three years in the penitentiary. He urges the following grounds for reversal: (1) The evidence is insufficient to sustain his conviction; (2) there is a variance between the indictment and the proof as to the time the offense was committed; (3) the trial court erred in permitting a child present at the trial to be referred to and identified as the issue of the appellant and his daughter; and (4) the Commonwealth's Attorney made an improper argument in his closing address to the jury.
The appellant's daughter, Myrtle Salyers, who was twenty-five years of age at the time of the trial, testified that her father first had illicit relations with her when she was fourteen years of age and that such conduct continued until she became pregnant. At her father's suggestion she gave the name of an innocent boy as the father of her child to the doctor in attendance at the time of the child's birth. She identified an eight and a half year old child present in the courtroom as the fruit of the illicit relationship. She said since the birth of her child there had been no illicit relationship between her and her father, but that on one occasion he had unsuccessfully attempted to be intimate with her and that she then left home to live with a brother in order to escape his solicitations.
The appellant denied his guilt and said he had never been accused of the offense until his wife recently filed a divorce action, and he insinuates that he was accused of the offense solely for the purpose of enabling his wife to obtain her divorce. Myrtle's testimony is not corroborated by any other evidence, but it is the rule in this jurisdiction that a father may be convicted of incest with his daughter on her uncorroborated testimony. See Whittaker v. Commonwealth, 95 Ky. 632, 27 S.W. 83; Nance v. Commonwealth, Ky., 237 S.W.2d 537.
Salyers next contends that he cannot be guilty of the offense charged in the indictment because it recited that the offense was committed 'on the ___ day of _____, 1944, and before the finding of this indictment,' whereas Myrtle testified that he had not been intimate with her after the birth of her child, who was eight and a half years of age at the time of the trial held in June, 1952. He maintains that the offense of which he was accused could, therefore, only have occurred prior to 1944, the time stated in the indictment. This would appear to be mathematically correct, but the error is immaterial in view of Section 129 of the Criminal Code of Practice, which provides:
'The statement in the indictment, as to the time at which the offense was committed, is not material further than as a statement that it was committed before the time of finding the indictment, unless the time be a material ingredient in the offense.'
Since time is not a material ingredient of the offense of incest, all that is necessary in the indictment in...
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Stringer v. Com.
... ... Page 886 ... the offense is of no consequence unless time is a material ingredient of the offense. Peyton v. Commonwealth, 288 Ky. 601, 157 S.W.2d 106 (1941). In both Browning v. Commonwealth, Ky., 351 S.W.2d 499 (1961) and Salyers v. Commonwealth, Ky., 255 S.W.2d 605 (1953), it was held that the date of the act of incest is not a necessary element of the offense and that it sufficed that the Commonwealth proved that the offense was committed prior to the rendition of the indictment. In Hampton v. Commonwealth, Ky., 666 ... ...
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Applegate v. Com.
...is that it should appear from its averments that the offense was consummated before the finding of the indictment." Salyers v. Commonwealth, 255 S.W.2d 605, 606 (Ky.1953). Accordingly, the indictment was proper and did not violate the separation of B. The Indictment Was Sufficient And Does ......
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Parson v. Commonwealth
...before the finding of the indictment."Applegate v. Commonwealth, 299 S.W.3d 266, 270-71 (Ky. 2009) (citing Salyers v. Commonwealth, 255 S.W.2d 605, 606 (Ky. 1953)) (internal quotations omitted). Here, the sexual abuse instruction given to the jury read as follows:You will find the defendant......
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Browning v. Com.
...the bill of particulars than to the indictment where uncertainty exists as to when an alleged violation took place. In Salyers v. Commonwealth, Ky., 255 S.W.2d 605, 606, it was specifically held that time was not of the essence in an indictment charging Thus it would appear, on the basis of......