
    Bertram v. Commonwealth.
    (Decided February 18, 1927.)
    Appeal from Wayne Circuit Court.
    Rape — In Trial of Boy Under 21 for Having Sexual Intercourse with Female Under 16, Instruction Under Statute Held Error (Ky. (Stats., :Supp. 1926, Section 1155, Subds. 2, 5). — Instruction under Ky. Stats., Supp. 1926, section 1155, subd. 2, beld error, where the defendant on trial for carnally knowing female under 18 was under 21 years of age; the instruction should have been given under subdivision 5.
    BERTRAM & BERTRAM for appellant.
    FRANK E. DAUGHERTY, Attorney General, and JOHN P. CUSICK for appellee.
   Opinion of the Court by

Drury, Commissioner

Reversing.

Phillip Bertram has appealed from a judgment imposing upon him five years ’ imprisonment in the penitentiary. for having sexual intercourse with a female less than sixteen years of age, and not his wife. The proof showed this was 'committed in the fall of the year 1925. The young woman became fifteen on October 17,1925, and Phillip Bertram became eighteen on the 16th of July of that year. The court should have instructed the jury under subsection 5 of section 1155, and the instruction drawn under subsection 2 thereof was erroneous. The •defendant shall have a new trial, in the conduct of which the court will observe what we have said here and in Render v. Com., 206 Ky. 1, 266 S. W. 914; Hewitt v. Com., 216 Ky. 72, 287 S. W. 223, and Hunley v. Com., 217 Ky. 675, 290 S. W. 511.

The judgment is reversed.  