Higgins v. Commonwealth

.JUDGE HAZBLBIGG

delivered the opinion op the court.

The appellant was tried, convicted and sentenced to the penitentiary for the term of two years, upon an indictment under section 9, article 4, chapter 29, of the General Statutes, which provides that “whoever shall unlawfully take or detain any woman against her will, with intent * * * to have carnal knowledge with her, * * shall be confined in the penitentiary not less than two nor more than seven years.”

On this appeal he urges as ground for reversal, first, the omission of the word “feloniously” in the indictment.

To this it is sufficient to say that the acts mentioned in the statute quoted, when unlawfully done, constitute the whole of the crime denounced therein.

It need not be charged of the accused that he acted maliciously, willfully or feloniously; if he be charged in the language of the statute creating the crime and in the manner required by it, then the charge is complete, and includes all that is required to be established in order to constitute the guilt of the accused. In common law felonies the rule is different. (See Kaelin v. Commonwealth, 84 Ky., 354 ; Cundiff v. Commonwealth, 86 Ky., 196 .)

Secondly, the appellant’s counsel contend that the statute has no application in this case, because of the insanity of the victim alleged to have been unlawfully detained; that the crime must be committed against *57 a woman having a will, capable of exercising it, and “against her will.” But the authority relied on happily stops far short of supporting such an inhuman and unreasonable doctrine. The generous principle of the law governing the case was aptly illustrated in the instruction of the lower court, whereby the jury was told that any act done toward the alleged victim by the defendant, other than acts of kindness, courtesy or friendship, were done “against her will.”

But the appellant, after due notice, filed his petition for a change of venue, alleging that on account of the prejudice against him and the excited state of public-opinion he could not have a fair and impartial trial in Pulaski county. He supported his petition with the affidavits of two credible witnesses, all in strict accordance with the requirements of section 2, article 4, chapter 12, of the General Statutes. No other testimony was introduced or offered by either party. The court overruled the motion, dismissed his petition and application for removal, and of this he complains.

For the Commonwealth it is insisted that since the statutory amendment of April 1, 1880, the question of removal is one of discretion with the court, whereas, theretofore it was absolutely incumbent on it to order the change whenever the defendant complied with the requirements of the statute. The amendment reads: “And the court shall, on said motion, hear all witnesses that may be produced by either party, and from the evidence determine whether or not the applicant is entitled to change of venue.”

It is evident that the object of this amendment was *58 to give the State an opportunity of combating the primd facie case presented by the petition of the defendant. and the affidavits of his friends. If this opportunity is not embraced, the court has no discretion. While the question was not directly presented, -Judge Holt, in delivering the opinion of the court in Wilkerson v. Commonwealth, 88 Ky., 25 , says: “Undoubtedly, if an accused, under the law as amended, presents his petition, accompanied by the two or more •affidavits, and no witnesses are introduced in court by •either party, the change of venue should be granted.”

We think that the appellant was clearly entitled, on the state of case presented, to have his petition for removal granted.

. While the same proof may not be offered in the ■case on its return, it is proper to say that the testimony of Trimble as to the condition of the room on the day following the trouble in question was improper. This room was exposed and used at all hours of the day and night, and its “torn up” condition twenty-four hours after the occurrence proves nothing, but, in view of Clark’s testimony, might be misleading and prejudicial.

We perceive no error in the instructions of the court, and think they embrace the law of the case.

For the reasons indicated the judgment below is reversed, and cause remanded with directions to grant the appellant a new trial, and for proceedings consistent with this opinion.