Opinion
Decided March 22, 1927.
Appeal from Estill Circuit Court.
EZART ASHCRAFT and BEN H. SCOTT for appellant.
FRANK E. DAUGHERTY, Attorney General, and MOORMAN DITTO, Assistant Attorney General, for appellee.
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 commonwealth 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, concludes 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 making the statements contained in her evidence on the first trial and, in substance, admitted those statements to be true. The opinion on the first appeal is the law of the case. It was then held that the verdict was wholly unsupported by the evidence for the commonwealth. It necessarily follows that the verdict on the second trial is equally unsupported by the evidence. The attorney general in his brief on the appeal concedes this to be true, and this court, after carefully considering the evidence, reaches the same conclusion. The court should have instructed the jury peremptorily to find the defendant not guilty.
Judgment reversed and cause remanded for further proceedings consistent herewith.