28 S.W.2d 774 | Ky. Ct. App. | 1930
Affirming.
Mose Blankenship was convicted of the crime of carnally knowing a female child not his wife, and condemned to serve twenty years in the penitentiary. The indictment charged that defendant was a male over 21 years of age, and that the child was under 12 and over 10 years of age. Upon this appeal it is insisted that error intervened at the trial in the admission of evidence, in failing to instruct the jury upon the whole law of the case, that the evidence does not support the verdict, and in certain other respects which will be noticed as the opinion proceeds.
The only evidence admitted over the objection of appellant was some of the testimony of the little girl. During her examination, the commonwealth's attorney directed her attention to certain matters, and asked her what, if anything, defendant would do to his pants. The *533
witness answered that he would unbutton them. She was then asked, "What would he do with your clothing, if anything," to which the witness answered that he would "pull her panties down." The defendant objected to the line of examination. It is not questioned that the substance of the testimony was competent, but the argument is made that the questions were leading and unduly specific in directing attention of the witness to particular subjects. It is not necessary to determine whether the particular line of examination constituted a leading of the witness, since it is well settled that the trial court in its discretion may permit leading questions when the witness is a child of tender years and such method of examination is necessary in order to elicit the facts. 40 Cyc. secs. 2427-2431. The Civil Code defines a leading question as one that suggests to the witness the answer which the examining party desires. Section 595. They are forbidden on direct examination except under special circumstances making it appear that the interests of justice require it. The practice is not regarded as reversible error in any case if the answer of the witness bears the impress of truth and demonstrates that the examiner's words were not put in the mouth of the witness. Wise v. Foote,
It is further insisted that the court did not properly instruct the jury. The indictment charged a violation of section 1155, Kentucky Statutes, which provides a punishment for every male person who shall carnally know, with herconsent, any female child not his wife, under the age of 18 years. The appellant insists that he was entitled to an instruction under section 1158, Kentucky Statutes, which provides a punishment for detaining a woman against her will
with intent to have carnal knowledge of her. The argument is advanced that a female under 18 years of age may not legally consent to unlawful intercourse with a man, and that such intercourse involves a detention against her will, regardless of her actual consent. The argument is predicated upon an assumption that, because the infant may not legally consent, the commonwealth is forbidden to introduce the subject of her actual consent. But the argument is unsound. The statute makes it a condition of the crime that the carnal knowledge of the infant be "with her consent." It treats the matter of consent as a fact, but, if the female is under the age of 18, the fact of consent is no protection. Section 1155, Ky. Stats. If the consent of the infant female be not given, the offense committed comes under section 1152 or section 1154, depending upon the age of the victim. This court has held consistently that a female under the age of 18 may not lawfully consent to an act of intercourse (Payne v. Com., 110 S.W. 314, 33 Ky. Law Rep. 229; Fenston v. Com.,
The decisions upon the subject of rape and the lesser offenses embraced within it are sufficiently explicit, but expressions found in some of the opinions are confusing. If the charge made in an indictment includes lesser degrees of the crime, a conviction may be had of any offense embraced within the indictment. Criminal Code, secs. 262, 263; Bethel v. Com.,
The appellant was indicted and convicted for a violation of section 1155, Ky. Stats., which provides the punishment for a man who has carnal knowledge of a female under the age of 18 years, with her consent. There is no *536
case holding that an instruction under section 1158 is ever necessary in the trial of an indictment under section 1155. One is designed to punish a detention, for the forbidden purpose, of any female without her consent, whilst the other prescribes a penalty for unlawful carnal knowledge of an infant with her consent. The crimes are distinct and are based upon circumstances essentially different and of opposing ingredients. Roseberry v. Com.,
It is also complained that an instruction to the jury was erroneous in that the child's name was given as Edna Mae Pack, whereas in the indictment she was named as Edna Pack. The instruction further described her "as a female child under twelve years of age," and the slight variance in her name was not material. The evidence left no doubt as to the party involved, and the inadvertence in giving her a middle name did not affect *537
the merits. The Criminal Code, sec. 128, provides that, if an offense involve a commission of injury to a person who is described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the person injured is not material. Undoubtedly the same rule must apply to an instruction. In this instance the person named in the indictment and in the instruction was shown to be the same person, and in such case the variance, if any, is not substantial. Robinson v. Com.,
It is insisted that the record raises serious doubt as to defendant's guilt, and, although there is sufficient testimony to establish all the ingredients of the crime, it is so improbable that a man 72 years of age would mistreat a mere child that the evidence does not support the verdict. Such questions are addressed primarily to the jury, and this court may not overturn the verdict of a jury because of the revolting nature of the charge. Oldham v. Com.,
The point is also made incidentally that one of the jurors was prejudiced against defendant. Two affidavits were filed to the effect that before the trial one of the jurors in discussing the case had stated that defendant ought to be imprisoned, or words to that effect. The juror denied the statement. There is nothing to show when the remark, if it was made, was communicated to appellant or his counsel. Reference to it is incorporated in the motion and grounds for a new trial. Appellant's affidavit does not state when he learned of the statement, or when his counsel was advised. The juror in question on his voir dire stated that he had not formed or expressed any opinion as to the guilt or innocence of the accused and knew of no reason why he could not give him a fair and impartial trial. The trial court was not convinced of the bias of the juror, and it does not appear that a sound discretion was abused in refusing to grant a new trial. Pierce v. Commonwealth,
Another incidental complaint is that Dr. Wellman, a witness for the appellant, was absent at the trial, but his testimony at an examining trial had been preserved and was read by defendant at the trial. The record does not show that appellant objected to proceeding with the trial without the personal presence of the witness. He was content with a reading of the testimony from the transcript, which states substantially the same facts mentioned in the affidavit of the appellant made after the trial. The testimony related to an alleged physical fact in possession of the appellant, and, if it was true, he was not prevented from proving it by other witnesses.
We find no error in the record prejudicial to the substantial rights of the appellant. Criminal Code, sec. 340; Basham v. Com.,
The judgment is affirmed.
Whole court sitting.