28 S.W.2d 486 | Ky. Ct. App. | 1930
Affirming.
Blueford Abbott was convicted of the crime of rape and condemned to suffer death by hanging in the county where the crime was committed. Ky. Stats., sec. 1137-1. He is here insisting that error to his prejudice intervened at the trial in the rejection of evidence offered by him and in an instruction given to the jury.
1. The defendant proved by the circuit clerk that a warrant for the arrest of defendant issued by the county judge had been transmitted to his office with papers for the grand jury and was in his custody. An offer to read the contents of the warrant to the jury met with an objection on the part of the commonwealth, which was sustained by the court. The warrant was not admitted in evidence, and the ruling furnishes the basis for appellant's first complaint. It appears by an avowal that the warrant charged the appellant with an assault upon the prosecuting witness. It is argued that the paper was admissible as a contradiction of the testimony of the prosecuting witness. She was asked nothing respecting statements made to the county judge, or concerning any affidavit she may have made before the county judge for the procurement of a warrant. An affidavit setting forth the facts showing the commission of a public offense was necessary before the magistrate could issue a warrant, unless he had personal knowledge thereof. Criminal Code of Practice, sec. 31; Ky. Stats., sec. 1372. Manifestly no testimony of the witness could be contradicted by the warrant issued by the county judge. It contained no statement made by her. It was not accompanied by any affidavit of the witness, or by any proof that a statement was made by her to the officer. If the witness made inconsistent statements relevant to the issue they were admissible (Civil Code of Practice, sec. 597), but the warrant itself was not competent for any purpose. The proper method of introducing such contradictory matter is well settled by the decisions. Civil Code, sec. 598; Duke v. Com.,
2. The second complaint is leveled at the second instruction to the jury which defined rape as referred to in the first instruction to mean "the penetration of the female organ, however slight such penetration may be, by the male organ by force or without the will or consent of the female." The instruction was not accurate, since the act must have been accomplished by force, actual or constructive, and against the will of the female. White v. Com.,
*426"Force, actual or constructive, is a necessary ingredient in the crime, except in cases not now involved; and a conviction in this case should not
have been permitted unless the act was committed forcibly, and against the will of the prosecutrix. The instruction hardly comes up to this requirement."
The defense in that case consisted of a claim that the act committed was with the consent of the prosecutrix. The evidence was in sharp conflict upon that issue, and the error in the instruction thus became important. In the instant case the indictment charged that the defendant "did unlawfully, feloniously and violently make an assault upon Ruby Taylor, a female above twelve years of age, and then and there, forcibly and against her will and consent, ravish and have carnal knowledge of her." The first instruction required the jury to believe from the evidence beyond a reasonable doubt that the defendant had unlawful carnal knowledge of Ruby Taylor "by force and against her will." The verdict of the jury found the defendant guilty "as charged in the indictment." The uncontradicted evidence was to the effect that the defendant had committed a most brutal assault upon the young lady, perpetrating all of the acts comprising the essential ingredients of the crime of rape. There was no evidence whatever of any consent to the act, or any lack of resistance to the assailant. Indeed, the evidence showed that the young lady with great courage kept up a resolute resistance until she was released. She was badly bitten, cut, and bruised, but she did not cease to defend herself. The defendant stated that he was badly intoxicated and had no recollection whatever of the occurrence, or of the occasion when the offense was committed. Voluntary drunkenness is no defense for the crime, and does not excuse or mitigate it. Thomas v. Com.,
It is said in the brief for appellant that he "deserves to be punished; that his conduct was without excuse, but that he was entitled to a fair trial." The statement is entirely correct, but the implication that the trial of appellant was not a fair one finds no support in the record. It is said that the conviction of appellant was at a second trial, the first one having resulted in a hung jury. The crime was committed in July, and the second trial took place in the following November. The jury was summoned from another county of which no complaint is made, and which manifestly was in the interest of a fair and impartial consideration of the facts unaffected by local influences. The uncontradicted evidence in the case established the guilt of defendant, and plainly the jury had a discretion as to the punishment it would fix. That responsibility, within the limits of the law, is imposed upon the jury. An examination of the record is convincing that the trial was a fair and impartial one. The error in the definition of rape in the second instruction, in the light of the record, could not possibly have been prejudicial, and would not warrant this court in ordering another trial. Parish v. Com.,
Since the appellant has had a fair and impartial trial according to law, it is not within our province to interfere. The punishment prescribed by the jury, although the most awful and severe that can be inflicted, was authorized by the law and justified by the facts established by uncontradicted evidence.
The judgment is affirmed.
Whole court sitting.
