
    Hylton v. Commonwealth.
    (Decided September 24, 1929.)
    O. C. HALL for appellant.
    J. W. CAMMACK, Attorney General, and JAMES M. GILBERT, Assistant Attorney General, for -appellee.
   Opinion op the Court by

Chiep-Justice McCandless

— Reversing. -

Ohlyh 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 ho 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 Ky. 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 tbe question tbe court intimated that tbe instruction was improper, but stated that under tbe indictment and proven facts tbe defendant was not prejudiced thereby, a situation entirely different from that bere presented.

Wherefore tbe judgment is reversed, and cause remanded for proceedings consistent with this opinion.  