Sebree, Jr. v. Commonwealth

• Decision Date: 19 October 1923
• Citation: 200 Ky. 534
• Parties: Sebree, Jr. v. Commonwealth.
• Court: Kentucky Court of Appeals

200 Ky. 534

Sebree, Jr. v.Commonwealth.

Court of Appeals of Kentucky.

Decided October 19, 1923.

Appeal from Kenton Circuit Court.

JOHN B. O'NEAL for appellant.

THOS. B. McGREGOR, Attorney General, and CHAS. W. LOGAN, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE THOMAS — Affirming.

The appellant, Thomas Sebree, Jr., a young man about 24 years of age, was indicted, tried and convicted in the Kenton circuit court of the felony charge denounced in section 1155 of the statutes, the female victim being Zelma Clemons, who was between 14 and 15 years of age.At the time of the alleged commission of the offense the prescribed punishment was confinement in the penitentiary for not less than ten nor more than twenty years, but by chapter 17, Acts 1922, page 65, the legislature amended the section so as to grade the punishment according to the age of the female.By subsection 2 of the amendment it was enacted that where she was between twelve and sixteen years of age the punishment should be confinement in the penitentiary not less than five nor more than twenty years.That amendment became effective before defendant's trial under the indictment, and the court did not submit in its instruction the minimum punishment of five years contained in the amendment, but submitted the minimum punishment of ten years as contained in the statute before the taking effect of the amendment, and the punishment fixed by the verdict was confinement in the penitentiary for sixteen years.

In his motion for a new trialdefendant relied on numerous grounds, but the court overruled it and he has appealed.His counsel urge five reasons why in his opinion the judgment should be reversed, which are: (1), that the indictment is duplicitous, and the court erred in overruling the demurrer filed to it; (2), that there was a failure of proof on the venue of the offense; (3), incompetent evidence introduced by the Commonwealth over defendant's objection; (4), error of the court in failing to instruct the jury under the amendment to the section of the statute under which he was indicted, and (5), improper argument of the Commonwealth's attorney, each of which we will discuss and dispose of as briefly as possible in the order named.

1.The accusatory part of the indictment properly names the offense in the language of the statute.In the descriptive part the averments are: "The said Thomas Sebree, Junior, in the county and state aforesaid, and before the finding of this indictment, he being a male person, did unlawfully and feloniously make an assault in and upon one Zelma Clemons, a female infant under the age of sixteen years, and did then and there unlawfully and feloniously carnally know and have sexual intercourse with the said Zelma Clemons."It is insisted that the language charges the two offenses of unlawfully and feloniously assaulting the female victim, and the one denounced by the section of the statutes; but, we are unable to agree with this contention.At common law a necessary element of the crime of rape was and is that the forbidden act should be done forcibly and against the will or consent of the female, but if she was under ten years of age there was a conclusive presumption that the act was done with force and against her will or consent.In other words, she was considered incapable of giving consent when below that age and that the act was, therefore, forcibly done.The statute only raises the common law age of consent from ten years to sixteen years, and in some cases changes the punishment.Frierson v. Commonwealth, 175 Ky. 684, andPerkins v. Commonwealth, 124 S. W.(Ky.) 794.While, therefore, it is unnecessary to aver in an indictment under the statute that the act was done unlawfully, or forcibly, or in any other assaulting manner, or without the will or consent of the female, yet if the allegation is made and it charges no element not found in the statute but only one which the law conclusively presumes, it will be regarded only as surplusage.

In the Friersoncase, supra, the indictment was drawn under the same section of the statute under which defendant was indicted, except the female victim in that prosecution was an idiot, and the exact reverse objection was made there that is made here, i. e., it was complained by defendant's counsel that the indictment failed to contain the language which is objected to in this case, and in disposing of it the opinion said: "The indictment, in the instant case, charges that character of rape which at the common law was accomplished by the nominal consent of the female and without violence or actual force by the perpetrator, and which, from the facts, the law conclusively presumes force on the part of the ravisher an absence of consent of the victim.Hence, it would be idle in such an indictment to charge that the offense was committed forcibly and without the consent of the infant, as both averments would be only surplusage."That opinion disposes of objection (1), but, if not so, we are confident that defendant was not misled by the averment complained of and that from its language he was enabled to know what was intended by the pleader, which was sufficient to conform the indictment to the requirements of subsection 2 of section 122 of the Criminal Code.

2.For a proper understanding and disposition of this ground it becomes necessary to make a brief statement of the facts.Defendant was the teacher of the public school at Bracht schoolhouse near Bracht station in Kenton county, Ky., in the latter of which Zelma Clemons lived with her parents and her brothers and sisters, some younger and some older than she.During the school year of 1920-1921 and up to April 8, 1922, and during the school year of 1921-1922, she attended the public school taught by defendant.Some time about the latter end of 1921defendant began to associate with her and to pay her what might be termed "courtship attention."He would sometimes walk with her after dismissal of the school from the schoolhouse to her home, and about the first of 1922 began to regularly visit her at her home twice or more a week, the greater number of which were at night and generally on Wednesday and Sunday evenings.Frequently they would be together alone in the parlor of Mr. Clemons' residence.Sometimes defendant and Zelma would take drives alone in the daytime, but it is not shown to what places they went.The residence of the defendant, that of Mr. Clemons, and the schoolhouse, were all located in Kenton county.About the time when the offense was possibly committed, according to the proof, a few trips were made in an automobile to the towns of Crittenden in Grant county, and Walton in Boone county, to picture shows therein, but it is proven that on most, if not all, of them a sister or brother of Zelma, or perhaps both, would go along.With the exception of those trips, there is no testimony even tending to show that the offense was, or may have been, committed in any other county than Kenton.The girl became pregnant, and on the night of April 8, 1922, she left home with the defendant in an automobile, returning near twelve o'clock, and remained in bed the greater portion of the next day, and after that till her death.Her mother was ignorant of her condition, and within a day or so found about a three or four months' old fetus in her room, and it developed that she and defendant on the night of April 8 had gone to Covington for the purpose of having an abortion performed.He confessed to the sheriff his participation in procuring the abortion and told the name of the physician to whom they went and gave the street and number of his office.The girl lingered until the 24th day of May following, when she died from the conclusively proven effects of the criminal abortion.The defendant confessed the act of intercourse, but stated that it was with the girl's consent, which under the statutes constitutes no defense.He did not testify in the case, nor did he introduce any witnesses in his behalf.From the foregoing brief statement of the Commonwealth's proof, together with other incriminating circumstances testified to by some of the witnesses, it is perfectly manifest that the evidence was sufficient, not only to submit the case to the jury but to sustain the verdict of conviction, which indeed is not disputed by learned counsel for defendant.He strenuously contends, however, that there was not sufficient proof to sustain the venue.

While it is necessary to prove the venue of the offense as laid in the indictment, yet, since it does not affect the issue of guilt or innocence, this court and others have said that "slight evidence will be sufficient to sustain the venue, and slight circumstances from which the jury might infer the place where the crime was committed, are held to be sufficient."Stubblefieldv. Comth., 197 Ky. Ky. 218, and other Kentucky cases cited therein.See also 16 Corpus Juris, 767-70;24 Cyc. 494;Sandefur v. Comth., 143 Ky. 655;Newton v. Comth., 158 Ky. 4, and the Friersoncase, supra.The latter case and the Sandefur case involved the exact question now under consideration in a trial of an indictment found under the samesection of the statute.In each of them there was a proven confession of the sexual act, but it did not include the necessary venue, and we held that, under the proven facts (such as opportunities for the commission of the offense within the county with but little, if any, opportunities for its commission elsewhere), the jury had the right to infer that the act for which the conviction was had occurred within the county.In this case, as we have seen, by far the greater number of occasions furnishing opportunities for the violation of the statute were at places within Kenton county with but few, if any, opportunities for its commission (within four months prior to the abortion) at a place without the boundaries of that county, and they, as we have...