Smith v. Commonwealth

• Decision Date: 20 September 1895
• Citation: 32 S.W. 137
• Parties: SMITH v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

32 S.W. 137

SMITH v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 20, 1895

Appeal from circuit court, Hardin county.

"Not to be officially reported."

Josephus Smith was convicted of seduction under promise to marry, and appeals. Reversed.

W. R. Haynes, for appellant.

Wm. J. Hendrick, for the Commonwealth.

PRYOR, J.

The indictment for adultery, and the trial had, is no bar to the present prosecution for felony. The higher is not merged in the lesser offense, nor are the two charges degrees of the same offense. While the conduct of the appellant is reprehensible, and to be condemned by all who have any regard for morals, still we are of the opinion that the appellant should have been granted a new trial. Without an extended discussion of the testimony, it is apparent that some instruction should have been given with reference to the character of the woman whose virtue is said to have been lost by the act of the defendant. If, at the time of this promise of marriage, she was a lewd woman, and shortly prior thereto had sexual intercourse with others, this verdict should not stand, and an instruction to that effect should have been given. Reversed, and remanded for a new trial.