Walling v. Commonwealth

292 S.W. 848, 219 Ky. 138, 1927 Ky. LEXIS 335

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: March 22, 1927
• Status: Published

Opinion

Opinion of the Court by

Commissioner Hobson—

Reversing.

Grant Walling was indicted for the seduction of Bernice Hughes, an unmarried female under the age of twenty-one years, under the promise of marriage. On the former appeal of the case, Walling v. Com. 211 Ky. 49, it was held that the evidence for the commoniwealth wholly failed to support the indictment. On the return of the case to the circuit court it was tried again. The defendant was again convicted. He appeals.

The court, after hearing the evidence read, conclude® that the testimony on the second trial is practically the same as on the first trial. While on her direct examination the plaintiff testified differently from her testimony on the first trial, on the cross-examination she, in substance, admitted mailing the statements contained in her evidence on the first trial and, in substance, admitted those state ments to be true. The opinion on tbe first appeal is tbe law of tbe case. It was tben field tfiat the verdict was wholly unsupported by tbe evidence for tbe commonwealth. It necessarily follows that tbe verdict on tbe second trial is equally unsupported by tbe evidence. Tbe attorney.general in bis brief on tbe appeal concedes thi:s to be true, and this court, after carefully considering tbe evidence, reaches tbe same conclusion. Tbe court should have instructed tbe jury peremptorily to find tbe defendant not guilty.

Judgment reversed and cause remanded for further proceedings consistent herewith.