Wilkey v. Com.

• Decision Date: 24 September 1898
• Citation: 47 S.W. 219,104 Ky. 325
• Parties: WILKEY v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

47 S.W. 219

104 Ky. 325

WILKEY v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

September 24, 1898

Appeal from circuit court, Hopkins county.

"To be officially reported."

Frank Wilkey was convicted of the crime of rape, and appeals. Reversed.

J. F Dempsey and Polk Lafoon, for appellant.

W. S Taylor, for the Commonwealth.

LEWIS C.J.

Appellant was convicted in the Hopkins circuit court under the following indictment: "The grand jurors of the county of Hopkins, in the name and by the authority of the commonwealth of Kentucky, accuse Frank Wilkey of the crime of rape committed in manner and form as follows, to wit: The said Wilkey, in the said county of Hopkins, on the -- day of May, 1897, and before the finding of this indictment, did unlawfully, willfully, forcibly, and feloniously have sexual intercourse with and carnally know Jennie Tyre, a female of and above twelve years of age, without the consent and against the will of the said Jane Tyre, against the peace and dignity of the commonwealth of Kentucky."

The first ground relied on for reversal is the action of the court in overruling the demurrer to the indictment, which counsel contends is defective because there is omitted from the description of the offense charged the technical term "ravish." It is undoubtedly the general rule applicable to common-law offenses, as said in Clark's Criminal Procedure, p. 196, cited by counsel, that "there are certain technical phrases and terms of art which are so appropriated by the law to express the precise idea which it entertains of an offense that they must be used in describing it"; and of these terms the word "ravish" was at common law deemed indispensable in describing the offense of "rape." But unquestionably the necessity for the use in an indictment of that or any like term may by statute be obviated, and other phrases substituted. And this proposition was recognized in Kaelin v. Com., 84 Ky. 354, 1 S.W. 594, in the following language: "In order to keep an intelligent view of the issue before the mind, it must be remembered that the appellant is not accused in the indictment of any crime created by statute, nor of any crime defined by statute, but of the common-law crime of murder, which the statute of the state does not define, but simply fixes the punishment to be inflicted for committing the crime. So, in determining the question of the sufficiency or insufficiency of the indictment before us, we must of necessity resort to the rules of the common law." And it was therefore held in that case that the failure to allege that the act of killing was feloniously committed rendered the indictment fatally defective. But the crime of rape of a female of and above 12 years of age is defined in section 1154 as follows "Whoever shall unlawfully carnally know a female, of and above twelve years of age, against her will or consent, or by force, or whilst she is insensible, shall be guilty of rape, and punished by confinement in the penitentiary not less than ten nor more than twenty years, or by death, in the discretion of the jury." It will be observed that by the language of that section the act of rape is as completely defined as if there had been used the word "ravish," which implies nothing more than that the act was done forcibly, and against the will of the woman. Moreover, it is provided that the act therein described, when committed, is rape; and, such being the case, the use in an indictment of the term "ravish," in addition to the words employed in the statute, would...