Bowling v. CommonwealthBowling v. Commonwealth
- Reporters:
- Before:
- Montgomery
Dallas Wayne Bowling and Raymond Woods were indicted jointly and charged with unlawfully having carnal knоwledge of Verna Dean Adams, a female over twelve years of age, against her will and without her consent.
The decisive issue on the trial was the question of consent. On appeal, Bowling urges that the evidеnce as to the circumstances of the commission of the offense was such as to destroy the probative value of the evidence given by the prosecuting witness. Hence, it is insufficient to sustain, the verdict.
Verna Dean was baby-sitting at the Wanda Helton home abоut six miles from Hy-den on Saturday night, February 7, 1958. The prosecuting witness was then fifteen years of age.
Bоwling and Woods, each seventeen years old, stopped in a car in front of the Helton home. According to Verna Dean’s testimony, she went out to the car at their request. Upon the return of Mrs. Helton, she went back into the house. The parties drove away. Verna Dean had known Woods but was not acquainted with appellant.
About twenty or thirty minutes later, the boys returned. At their request, Verna Dean went out to the car. She did not wear a coat. The boys wanted to talk to her about Jessie Dean, Woods’ girl friend. Verna Dean got into the car. She said they drove off against her wishes.
According to Verna Dean, apрellant “tried to mistreat” her. Later, while descending Stinnett Hill, the car became stalled in thе ruts in the road. The place where it stopped was not “in hollering distance or in sight of any house”. The three remained there in the car all night. During that time, Verna Dean testified, she was forced to get on the rear seat of the car under threats made by Woods with a knifе. She said that she was forced to submit to appellant and then Woods, twice each, alternately. Appellant and Woods both testified that Verna Dean submitted willingly. Each of them said that Woods had intercourse with her first. They denied having a knife or making any threats.
When called in rebuttal, Verna Dean said that appellant and‘Woods had been drinking and had a smаll amount of liquor with them. She did not drink any.
*55Curtis Napier and liis brother also had car trouble a short distance away. Curtis testified that appellant came to his car about 5 a. m., and sought hеlp. The Napier boys went with appellant but were Unsuccessful in moving the stalled car. Thеy stayed in the car with appellant, Woods, and Verna Dean for about an hour. Curtis testified that there was no trouble and Vern Dean complained only of “freezing”.
Shortly after daylight, Verna Dean left Woods and appellant. She walked over the hill until she came to the home of Edmond Osborne, whom she asked to help her get home. About 11 o’clock in the morning, Woods came to Osborne’s home. After he left, Verna Dean admitted to Osborne thаt she had been out with Woods but asked him not to tell it. Osborne took her home that afternoon. Her foster mother testified that the zipper on Verna Dean’s skirt was torn when she got homе..
Appellant relies on Carter v. Commonwealth, 245 Ky. 257, 53 S.W.2d 521, 522, wherein the Court said:
“ * * * it is the province of the court to determine whether there is any evidence to support a case or any particular theory of a case, and in so doing to rеject any alleged statement of facts inherently impossible and wholly at variance with universally recognized laws. * * * ”
It also was pointed out in the Carter case that it is within the pеculiar province of the jury to determine the credibility of the witnesses and the weight to be given their testimony, and in the exercise of that function they may believe one witness though contradicted by a number of others, or one set of witnesses to the exclusion of othеrs. Whitaker v. Commonwealth, Ky., 302 S.W.2d 601; Jones v. Commonwealth, 313 Ky. 827, 233 S.W.2d 1007; Lucas v. Commonwealth, 311 Ky. 644, 225 S.W.2d 103. It is not the function of this Court to retry such cases. There may be evidеnce in this case which, if believed, would cast grave doubt on the testimony of the prosecutrix; yet, it cannot be said that the facts here are inherently impossible and wholly at variance with universally recognized laws. There was sufficient evidence to sustain the verdict.
About forty-five days after appellant was convicted, the prosecutrix and her foster .mother made affidavits in which they expressed a willingness for appellant to have a new trial or to be placed on probation. These affidavits have no proper place in this record and cannot be considered by this Court.
Judgment affirmed.