It has been held, however, that the jury may not fix the age of the defendant by merely observing him during the trial; and that there must be some other evidence in conjunction with the appearance of the defendant. See, Slocum v. People, 120 Colo. 86, 207 P.2d 970 (1949); People v. Grizzle, 381 Ill. 278, 44 N.E.2d 917 (1942); Commonwealth v. Hines, 282 Ky. 791, 140 S.W.2d 386 (1940)." 199 Neb. at 819, 261 N.W.2d at 757.
It is uniformly the rule that a defendant's physical appearance may be considered by the jury in determining his or her age. See, II Wigmore On Evidence, 222, pp. 5, 6 (3d Ed., 1940); Torres v. State, 521 P.2d 386 (Alas., 1974); State v. Hemmenway, 80 S.D. 153, 120 N.W.2d 561 (1963); State v. Fries, 246 Wis. 521, 17 N.W.2d 578 (1945). It has been held, however, that the jury may not fix the age of the defendant by merely observing him during the trial; and that there must be some other evidence in conjunction with the appearance of the defendant. See, Slocum v. People, 120 Colo. 86, 207 P.2d 970 (1949); People v. Grizzle, 381 Ill. 278, 44 N.E.2d 917 (1942); Commonwealth v. Hines, 282 Ky. 791, 140 S.W.2d 386 (1940). In addition to the defendant's appearance, there was evidence that the defendant was purchasing and drinking beer in a tavern on the day of the alleged crime, and that he purchased a case of beer in a grocery store after he met the prosecutrix.
People v. Grizzle, 381 Ill. 278, 289 (1942). Commonwealth v. Hines, 282 Ky. 791, 792-793 (1940). State v. Lauritsen, 199 Neb. 816, 819 (1978).
The ages of the two persons involved in the conduct are material elements of the offense and must be shown in proof. Commonwealth v. Hines, 282 Ky. 791, 140 S.W.2d 386; Carroll v. Commonwealth, 295 Ky. 522, 174 S.W.2d 770. No proof was introduced by the Commonwealth as to the age of the appellant.
The long-established rule of pleading in this jurisdiction is that where one asserts a right conferred by statute subject to a specific exception, he must negative the exception if it is contained in the sentence or paragraph that creates or defines the right. Marshall v. Tully, 193 Ky. 246, 235 S.W. 726; Com. v. Hines, 282 Ky. 791, 140 S.W.2d 386; Blackerby v. Monarch Equipment, Ky., 259 S.W.2d 683, 686. Since the petition did not negative the exception contained in the sentence of the section of the statute giving appellant his cause of action, it follows from the above-cited authorities the petition was bad on general demurrer.
We have held consistently in this character of case that the verdict based upon the uncorroborated testimony of the prosecutrix will be sustained unless her testimony is so highly improbable as to show it to be false. McDaniel v. Commonwealth, 308 Ky. 132, 213 S.W.2d 1007; Fugate v. Commonwealth, 291 Ky. 793, 165 S.W.2d 573. After the defense had closed, the Commonwealth recalled appellant for further cross-examination. Up to this point the Commonwealth had failed to prove appellant's age, a fact necessary to be shown since the offense of which appellant was accused was only a misdemeanor if he was under twenty-one years of age. Commonwealth v. Hines, 282 Ky. 791, 140 S.W.2d 386. In answer to the one question asked when he was recalled, the appellant said he was twenty-seven years of age. Precisely the same question was presented in Fitzgerald v. Commonwealth, 269 Ky. 800, 108 S.W.2d 1041, and we held that it was not an abuse of discretion on the part of the trial court to permit the defendant to be recalled after he had offered all of his evidence and be examined concerning his age although this was evidence in chief.