Opinion op the Court by
Chiep Justice BarkerReversing.
The appellant, Isaac Patton, was indicted by' the grand jury of Floyd county, charged with the offense of *514unlawfully detained a woman against her will,' with intent to have carnal knowledge of her himself. To this indictment he entered a plea of not guilty, but a trial before a petit jury resulted in his being found guilty as charged in the indictment and his punishment being fixed at confinement in. the penitentiary for the term of two years. Of the judgment based upon this verdict he now complains.
The bill of exceptions' shows that there was not the slightest evidence adduced upon the trial that the defendant was guilty of the charge set forth in the indictment. It was shown that the appellant and one Bertha Deboard had been guilty of the grossest immorality, but there was nothing which tended.to convict appellant with detaining the woman against her will. On the contrary, everything in the record, shows that what was done was with her consent. We do not find it necessary to reproduce the details of what took place, deeming it sufficient to say that, in our opinion, the learned trial judge erred in'refusing to instruct the jury peremptorily to find the defendant not guilty at the close of the Commonwealth’s testimony.
The judgment is reversed for proceedings consistent herewith.