Commonwealth v. McNutt

Opinion op the Court by Judge Hobson Reversing. Section 1214, Ky. St., is in these words: “Whoever, shall, under promise of mJarriage, seduce and have carnal knowledge of any female under twenty-one years of age, shall be guilty of a felony and, upon conviction thereof, shall be 'Confined in the penitentiary not less than one year nor more than five years. No prosecution shall be instituted where the pérson charged shall have married the girl seduced, or offer and be willing to marry her, unless he shall willfully and without such cause as eonstitues a statute ground of divorce to the husband, abandon or desert her within three years after the date of the marriage, and any prosecution shall, upon the request of the defendant, be suspended if the party accused marry the girl seduced before final judgment; but the prosecution shall be renewed and proceed as though no marriage had taken place if the accused shall willfully land without such cause as constitutes a 'Statutory ground of divorce to the husband abandon or desert his wife within three years after the marriage. All prosecutions under this section shall be instituted within four years after the commission of the offense.” Laurence E. McNutt was indicted under this statute for seducing Mattie Lee Kesler. It was charged in the indictment that he promised to marry her, and under this promise of marriage seduced her in the year 1907; that in August, 1908, [705] he married her, and in the same month without cause as defined in the ¡act abandoned and deserted her. The circuit court sustained a demurrer to the indictment on the ground that he had married the girl before the indictment was found. The Commonwealth appeals. Previous to the act of 1906 (Acts 1906, p. 253, c. 25) the provision of the statute on this subject was as follows: “No prosecution shall be instituted where the person charged shall have married the girl seduced.” Under this provision it was held by the court that if the defendant offered in good faith and w!a.s willing to marry the girl, and she refused to marry him, there could be no prosecution, and so by the act of 1906 these words were added, “or offer and be willing to marry her.” But another mischief had come up. Men in this character of cases would marry the girls seduced as a matter of form and inn mediately abandon them, thus defeating the obvious intent of the Legislature; and so by the act of 1906 these words were added, “unless he shall willfully and without such cause as constitutes a statute ground of divorce to the husband, abandon or desert her wihin three years .after the date of the marriage.” The purpose of the Legislature was manifestly to provide that a mere form ■ of marriage should not defeat the prosecution, and it is entirely immaterial whether the marriage takes place 'before, the indictment is found or afterwards. The statute provides, in substance, that no prosecution .shall be instituted where the defendant has married the girl unless within three years after the date of the marriage he abandons her without cause for divorce. If the defendant has committed the offense, and he [706] does not bring himself within the exception, he may be indicted and punished, as a prosecution will lie in every ease covered by the statute, which is not by it excepted out of its operation. The statute in providing in what ease no prosecution shall be instituted necessarily means that in all other cases prosecutions may be instituted. The indictment follows the language of the statute, and it has been held in .a number of cases of this sort that such indictments -are sufficient. The defendant may show any ground that he had for abandoning or deserting his wife. But the prosecution will make out a prima fa'cie case when it shows that his wife behaved towiard him properly after the marriage, and that he abandoned her without apparent cause. To set out in the indictment all the statutory grounds of divorce to the husband and negative their existence would lead to to'o great prolixity. This would enlighten the defendant in no respect, as to the nature of the accusation against him, and would be of no help to him in making his defense. If any of these grounds ■exist, this is a matter presumably within his knowledge, and so the general negative allegation following the language of the statute is sufficient Higgins v. Commonwealth, 94 Ky. 54, 21 S. W. 231, 14 R. 729. The indictment contains “a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended; and with such degree of certainty as to enable the court to pronounce judgment, on conviction, according to the right of the case,” as required by section 122 of the Criminal Code of Practice. Section 136 also pro [707] vides: “The words used in a statute to define an offense need not be ‘strictly pursued in an indictment, but other words conveying the same meaning may be used.” The act of 1906 (see.Acts 1906, p. 253) is not uniconstitutional. It has been held in a number of cases that a statute may be amended by its title, and that a section of the Kentucky Statutes may be so amended. City of Paducah, Ex parte, 125 Ky. 510, 101 S. W. 898, 31 R. 170, and cases cited. It is true that in the first part of the act words are set out as added to the statute which are changed in the latter part of the statute, where the statute as amended is set out in full. The reason of this evidently wlas that the words, “without just cause,” were too indefinite, and the act was amended só as’ to substitute for them “without such cause as constitutes a statute ground for divorce.” The amended words were substituted in the latter part of the act where- the statute as amended is set out in full, hut by oversight the act as it was originally written is-left unchanged in the opening clause where the words to be added are set out. When the whole act is read, it is manifest what the Legislature meant. Section 51 of the Constitution provides: “No law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title -only, but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length.” ■ Pursuant to this provision, the section as amended is set out in full in the act. The preceding part of the act was merely intended to show how the- result was reached. The fact that there is a discrepancy between the old section when the words were added to it which are proposed in the first part of the act and [708] the section as amended which is set out in the latter part of the act is immaterial. The act declares that the section shall be read as therein written, and this is the law. Judgment reversed, and canse remanded for further proceedings consistent herewith.