Hargis, &c., v. Begley, Clerk, &c. Civ. Code Prac. The seventh subdivision of that section is as follows: "For unavoidable casualty or misfortune, preventing the party from appearing or defending." Casualty is that which happens without design or without being foreseen. If Hays was "accidentally shot," it was without design on his part; and if he was prevented from appearing at the Leslie circuit court by reason thereof it would be the same as if he had become seriously ill and was thereby prevented from attending court. If Hays had been at his home in Breathitt county, and had been sick, and thereby prevented from attending the Leslie circuit court, it would not be contended that his sureties could not have successfully defended for his not appearing; and there is no reason why that defense would not avail them if his sickness had occurred to him while on a visit to his brother. It is true appellants in their pleading did not use the words "that Hays was prevented from attending the Leslie circuit court by reason of an unavoidable casualty or misfortune;" but the fact stated by them, if true, show these facts. We are of the opinion that the lower court erred in sustaining a demurrer to appellants' pleadings. The judgment is reversed and remanded for trial; and if appellants' contentions are found to be true the court will set aside the judgment and render judgment according to the justice of the case, as provided in section 98, Cr. Code Prac., which is as follows: "If, before judgment is entered against the bail the defendant be surrendered or arrested, the court may, at its discretion, remit the whole or part of the sum specified in the bail bond." vol. 129-31 Howerton v. Commonwealth. CASE 51.-PROSECUTION AGAINST PERCY HOWERTON FOR 16 YEARS OF AGE.-September 29. Howerton v. Commonwealth Appeal from Crittenden Circuit Court. J. F. GORDON, Circuit Judge. Defendant convicted and appeals-Reversed. 1. Indictment and Information-Statutory, Offenses-Suficiency. 4. Criminal Law-Continuance-Grounds.-The refusal to grant 6. Same. Where the prosecution admitted, to avoid a continu- Howerton v. Commonwealth. 7. Same.-Prosecuting attorneys should see that justice is fairly meted out, and that accused is fairly dealt with, and it is not a part of their duty to abuse accused in the hearing of the jury. 8. Rape-Evidence-Admissibility.-Where, on a trial for carnally knowing a female under the age of 16 years, the evidence of the age of the prosecutrix was conflicting, evidence that the monthly sickness of prosecutrix had regularly occurred for five years preceding the offense was admissible to show that prosecutrix was over 16 years of age at the time of the commission of the offense. R. L. MOORE and J. H. & JOHN A. MOORE for appellant. CLASSIFICATION OF QUESTIONS DISCUSSED AND 1. Does an act of the Legislature, providing, "Whoever shall unlawfully carnally know a female under the age of sixteen years, or an idiot, shall be confined in the penitentiary for not less than ten nor more than twenty years," create a purely statutory offense, or is it a continuation of the common-law crime of rape, with a change in the punishment inflicted? 2. Is an indictment for carnally knowing a female under sixteen years of age, fatally defective on demurrer, that fails to aver that the crime was committed with a felonious intent? (Greenleaf on Evidence, vol. 3, p. 180, sec. 211; Fensten v. Commonwealth, 82 Ky., 549; Payne v. Commonwealth, 33 Ky. Law Rep., 229; Hall v. Commonwealth, 26 S. W., 8; Reed v. Commonwealth, 76 S. W., 838.) 3. It is not a reversible error to force appellant into trial over his protests, in the absence of his chief counsel, this being the only attorney familiar with his defense and the one to whom he had intrusted the entire preparation of his defense. (Jett v. Commonwealth, 85 S. W., 1179; Bates v. Commonwealth, 16 S. W., 528; Leslie v. Commonwealth, 42 S. W., 1095; Cornelius, v. Commonwealth, 64 S. W., 412.) 4. Where appellant is forced into trial over his protests and in the absence of his witnesses,, upon the agreement, that his affidavit may be read as the deposition of his absent witnesses, is it not a reversible error, to permit the attorney for the Commonwealth, to argue to the jury, that the affidavit is untrue, and argue to the jury the motives that prompted the Commowealth to admit the affidavit, and to tell the jury that if the absen wit Howerton v. Commonwealth. ness was present he would not swear to the statements made in the affidavit? (Martin v. Commonwealth, 89 S. W., 226; Darrell v. Commonwealth, 82 S. W., 289; 88 S. W., 1080; Redmond . Commonwealth, 51 S. W., 565; Johnson v. Commonwealth, 61 S. W., 191.) JAMES BREATHITT, Attorney General, TOM B. MCGREGOR, Assistant Attorney General, and JOHN Y. GRAYOT for Commonwealth. COMMONWEALTH'S CONTENTIONS. 1. That section 1155, Kentucky Statutes, as amended by Act of General Assembly, approved March 16, 1906, constitutes a statutory offense purely, and that the word "feloniously" is not required in an indictment under said section. 2. That no reversible error was committed in the court refusing to continue the case on account of the sickness of Attorney R. L. Moore. 3. That no error was committed in permitting Commonwealth's attorney to comment upon the affidavit as to absent witnesses admitted as evidence. 4. No error was committed in permitting the Commonwealth's attorney in his closing remarks to use certain language complained of concerning appellant. 5. That appellant has had a fair and impartial trial and should be satisfied with the judgment against him. AUTHORITIES. Ky. Stats., sec. 1155 (Acts 1906); Robinson's Crim. Pro., sec. 271; Hall v. Commonwealth, 15 Ky. Law Rep., 856; Higgins v. Commonwealth, 14 Ky. Law Rep., 729; Ky. Stats., sec. 1158; Kaelin v. Commonwealth, 844 Ky., 354; Cundiff v. Commonwealth, 86 Ky., 196; Robinson's Crim. Pro., sec. 932; Commonwealth v. Lewis, 11 Ky. Law Rep., 421; Crim. Code., sec. 189; Lindel v. Commonwealth, 111 Ky., 866. OPINION OF THE COURT BY JUDGE SETTLE-Reversing. Appellant was tried in the court below under an indictment charging him with the crime of carnally Howerton v. Commonwealth. knowing a female under the age of 16 years. The jury by verdict found him guilty, and fixed his punishment at confinement in the penitentiary 10 years. Judgment was thereupon entered in accordance with the verdict, and from that judgment this appeal is prosecuted. Numerous grounds were filed by appellant in the court below in support of his motion for a new trial. The evidence introduced by the Commonwealth con'duced to prove appellant's guilt of the crime charged. It was to the effect that he repeatedly and for a period of several months had carnal knowledge of the prose cutrix, an orphan 15 years of age, who had been received by his parents from a Louisville asylum to rear and support, and that the girl was made to yield to his lust through fear superinduced by force, and threats on his part to take her life if she told of his misconduct. This testimony came from the prosecutrix alone, who was contradicted by much of the evidence introduced in appellant's behalf, which tended to show that the charge against him was devised by her as a means of enabling her to leave the home of his parents of which she had apparently tired. It is not our province to pass upon the evidence. In view of our conclusion that appellant should have another trial, we refrain from any expression as to whether or not it was sufficient to authorize his conviction, deeming it only necessary to say that it justified the submission of the case to the jury. It is insisted for appellant that his demurrer to the indictment should have been sustained because of its failure to allege that the crime charged was committed feloniously or with a felonious intent. The objection is without merit. The crime charged is |
