Opinion
Decided September 24, 1929.
Appeal from Floyd Circuit Court.
O.C. HALL for appellant.
J.W. CAMMACK, Attorney General, and JAMES M. GILBERT, Assistant Attorney General, for appellee.
Reversing.
Ohlyn Hylton was tried under section 1155, Ky. Stats., Supp. 1928, on a charge of having carnal knowledge of a female under 17 years of age. He was found guilty and sentenced to the penitentiary for 3 years. There is no reference to defendant's age in the indictment, or allegation that he was over 21 years of age at the time the offense was committed. Therefore the offense charged a misdemeanor only. Hewitt v. Com., 216 72, 287 S.W. 223.
However, the instructions authorized a felony conviction, if the jury believed beyond a reasonable doubt that the offense was committed and that the defendant was over the age of 18 years at the time. Manifestly this was error, and requires a reversal of the case. It seems that the court was confused by the opinion in the case of Basham v. Com., 225 Ky. 781, 10 S.W.2d 285, in which a conviction upon a similar instruction was upheld. In that case, however, the indictment charged that the defendant was over 21 years of age at the time the offense was committed, and the defendant himself testified that he was 27 years of age at the time; this evidence not being contradicted by any one. In passing upon the question the court intimated that the instruction was improper, but stated that under the indictment and proven facts the defendant was not prejudiced thereby, a situation entirely different from that here presented.
Wherefore the judgment is reversed, and cause remanded for proceedings consistent with this opinion.