202 Ky. 782
Court of Appeals of Kentucky.
April 25, 1924.
ACTION: Reversed, with directions to grant new trial.

Appeal from Circuit Court, Bell County.
Phoebe Madden was convicted of unlawfully having sexual intercourse with a male child under age of 18 years, and appeals.

On March 10, 1923, the grand jury of Bell county returned an indictment against appellant and defendant therein, Phoebe Madden, charging her with the offense denounced by section 1155 of the Kentucky Statutes, as amended by act of 1922. Chapter 17, page 65, of the Acts for that year. Upon her trial under a plea of not guilty, she was convicted and sentenced to serve a term of 5 years in the state penitentiary, and her motion for a new trial having been overruled she prosecutes this appeal. Two of the grounds relied on as error in the motion for a new trial, and argued on the appeal, are (1) the insufficiency of the indictment and error of the court in overruling the demurrer thereto; and (2) error in the instructions of the court. It is also argued as a third ground for reversal that the court erroneously admitted incompetent evidence introduced by the commonwealth, but we are not inclined to sustain counsel in that contention, and will confine this opinion to a consideration of grounds (1) and (2).

A sufficient answer to ground (1) is that the record fails to show that any demurrer was ever filed to the indictment, but notwithstanding that fact, if it failed to charge a public offense, it was the duty of the court to arrest the judgment, and, unless resubmitted or otherwise cured, defendant could not be tried and punished thereunder. We, however, find no fault with the indictment in this case. In its entirety it says:
"The grand jury of Bell county, in the name, and by the authority, of the commonwealth of Kentucky, accuse Phoebe Madden of the crime of unlawfully and willfully having sexual intercourse with a male child under the age of 18 years, not her husband, committed in manner and form as follows, viz.: The said Phoebe Madden in the state and county aforesaid, and on the _____ day of _____ 1923 and within _____ months before the finding of this indictment, did unlawfully have carnal knowledge of and sexual intercourse with Charlie Baker, a male person, who was at the time of such acts under the age of 18 years, against the peace and dignity of the commonwealth of Kentucky."

Prior to the amendment of 1922, which took effect on the 13th day of June of that year, the offense could only be committed by a male upon a female who was under the prohibited age, which was then 16 years, or an idiot; but the amendment, in the generic offense which it described, raised the age of consent to 18 years, and left out entirely the prohibition as to committing the act upon the body of an idiot, and also made the statute applicable to both sexes, and made it unlawful for a member of either sex to commit the offense upon the body of the other not his or her spouse when the victim was under the prohibited age.

The generic offense, as described in the amendment, was couched in these words:
"Every male person who shall carnally know, with her consent, any female child, not his wife, under the age of eighteen years, and every female person who shall carnally know any male child under the age of eighteen years, not her husband, shall be punished as follows."

We therefore conclude that ground (1) is without merit.

Subsections 1 and 2 of the amendment provide for an increased punishment of the offender according to the age of his victim, and in fact created higher crimes than the one contained in the statutory definition of the generic one. Subsection 1 prescribed the punishment of "imprisonment in the state penitentiary for not less than twenty years nor more than fifty years, or by death, in the discretion of the jury," if the victim was below 12 years of age; while subsection 2 prescribed a punishment of "imprisonment in the state penitentiary for not less than five years nor more than twenty years," if the victim was between 12 and 16 years of age, and subsection 3 fixed a punishment of confinement in the penitentiary "for not less than two years nor more than ten years," if the victim was above 16 and under 18 years of age, which is the highest punishment that could be inflicted under the indictment as drawn, since it alleged therein the maximum age of the victim, and contained no charge of his being of a lower age to which the statute affixed, by subsections 1 and 2, a higher punishment. The court, however, ignored the charge in the indictment, and instructed the jury under subsection 2 of the statute, since the testimony of the commonwealth showed that the masculine prosecuting witness was between 12 and 16 years of age, being at the time slightly above 14 years old; and the act of the court in so instructing the jury, in the absence of an allegation in the indictment of the age of the prosecuting witness so as to authorize the increased punishment under that subsection, is the chief error complained of under this ground (2), and which complaint we think is well founded.

"An assault, being punishable in a particular way, if a statute enhances the punishment when a specified fact attends it, the greater punishment cannot be awarded, unless the indictment charges such aggravating fact."

"The indictment should as a rule set out all the facts which in law may influence the punishment. In charging those offenses which become offenses of greater degree or subject to a greater punishment by reason of having been committed under aggravating circumstances or with particular intent, it is necessary first to charge the minor offense with its appropriate description, and then allege the matter of aggravation."

Following that rule, and by analogy, it is universally held that the increased punishment prescribed by various "habitual criminal" statutes for a second or third conviction of the same offense cannot be inflicted, unless the indictment alleges with the requisite certainty the prior conviction or convictions.

Since, therefore, it is incompetent, as we have seen, to convict the accused of a higher degree of the offense than the one with which he is charged in the indictment against him, it was error for the court in this case to submit to the jury in its instructions the higher punishment of confinement in the penitentiary for "not less than five years nor more than twenty years," as prescribed in subsection 2 of the amendatory act, because that punishment is of a much higher degree than if the prosecuting witness had been just below 18 and above 16 years of age, and which is, as we have seen, confinement in the penitentiary not less than 2 years nor more than 10 years. The defendant in this case was prejudiced by the giving of that instruction, since the minimum punishment for the offense charged in the indictment (in the absence of an allegation of the facts increasing the punishment which in this offense was the age of the victim) was 2 years, 3 years less than appellant received.

Defendant was also entitled to require that the indictment against her should contain the particular circumstance of the offense with which she was charged, and for which the commonwealth proposed to punish her in such ordinary and concise language as to enable her to understand and know what was intended, so as to afford her an opportunity to prepare for trial, and to disprove, if she could, any of the issues of fact entering into her guilt or degree of punishment, and the indictment in this case did not afford her that information concerning any degree of the offense, except that contained in the first section of the amendatory act. It is therefore apparent that the court erred in submitting to the jury the punishment prescribed in subsection 2 of the amendatory act.

The instruction authorized the jury to find the defendant guilty, if it believed beyond a reasonable doubt that the offense was committed at any time prior to the finding of the indictment, which, as a general rule, is the correct practice in felony cases where no limitation is provided beyond which the prosecution cannot be maintained. But, in the instant case, the prosecuting witness said that the offense was committed some time in the summer of 1922. The amendatory act, creating the offense so far as the female perpetrator is concerned, did not take effect until the 13th day of June, 1922, and, from the broad statement of the prosecuting witness as to when the crime was committed, it might have been done prior to that date, which, if true, defendant was guilty of no offense except either fornication or adultery. The instruction, therefore, should have required the jury to believe that the offense was committed at some time subsequent to the taking effect of the amendatory act, and because it failed to do so it was also erroneous.

Wherefore the judgment is reversed, with directions to grant the motion for a new trial, and for proceedings consistent with this opinion.

Ky.App. 1924.
261 S.W. 273, 202 Ky. 782


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