175 Ky. 684 | Ky. Ct. App. | 1917
Opinion of the Court by
Affirming.
Thegrand jury, in the Fayette circuit court, returned an indictment against appellant, J. W. Frierson, who claimed to be a preacher. The indictment, without the style of the court and case, is as follows:
“The grand jury of Fayette county in the name and by the authority of the Commonwealth of Kentucky accuse J. "W. Frierson of the crime of rape, committed as follows, viz: That said J. W. Frierson, on the 3rd day of January, 1916, in the county aforesaid and before the finding of this indictment, did unlawfully and carnally know Serpora Taylor, who was then and there a female under the age of sixteen years, and not the wife of the said Frierson, against the peace and dignity of the Commonwealth of Kentucky.”
The appellant, to this indictment, interposed a gen-, eral demurrer, which was overruled and to which ruling he excepted.
The trial resulted in a verdict of guilty, and the fixing of the punishment of the accused by the jury at ten years confinement in the state reformatory, and the rendition of a judgment in conformity with the verdict. His motion for a new trial having been overruled, he appealed to this court and seeks a reversal of the judgment, because, as
(1) By overruling the demurrer to the indictment.
(2) By denying his motion, at the close of the evidence for the Commonwealth, and at the close of all the evidence, to instruct the jury peremptorily to find him not guilty.
(3) By admitting incompetent evidence over his objection. !
(4) By misinstructing and refusing to properly instruct the jury. .
The grounds insisted upon for reversal will be considered in their order.
(a) ' It is insisted that the demurrer to the indictment should have been sustained, because, in the accusative part of the indictment, the appellant is accused' of rape, while in the descriptive portion of it, there is described and he is accused of an entirely different offense — that of having carnal knowledge of a female under the age of sixteen years, other than his wife, and that there is an absence of averments of any of the facts, which are necessary to constitute the crime of rape, and that the crime denounced by section 1155, Kentucky Statutes, which is the one described by the specifications of the indictment, does not constitute the crime of rape.
If the crime, charged against appellant, in the accusative part of the indictment, had been that of unlawfully having carnal knowledge of a female under the age of sixteen years, and followed by the description of the offense, as in the indictment, there could be no doubt of the validity of the indictment, but it is insisted, that the crime denounced by the section of the statute, supra, is a statutory offense, and for that reason must necessarily be a different offense from the offense of rape, at the common law, and that the indictment is invalid, because it denominates such offense, a rape. At the common law, the crime of rape was committed, when a man unlawfully and forcibly had sexual intercourse with a woman without her consent, if she was of an age, at which, the common law considered, that she was possessed of a discretion, which enabled her to consent to sexual intercourse; and if she had not attained that age, then carnal knowledge of her was rape, whether with or without her nominal consent, and not being able to consent, the common law considered the act of intercourse with her to have been done forcibly. If a woman, by reason of imbecility
“Whoever shall unlawfully carnally know a female under the age of sixteen years, or an idiot, shall be confined in the penitentiary not less than ten nor more than twenty years.”
When this statute was first enacted, it denounced the penalty prescribed therein upon any one, who unlawfully had sexual intercourse with a female under the age of twelve years, or with a female idiot of any age. The age beneath which, a female was not capable of giving her consent to unlawful sexual intercourse was thus fixed at twelve years. In 1906, this statute was amended and the age of consent was raised from twelve to sixteen years. Section 1152, Kentucky Statutes, provides a punishment for anyone, who commits the crime of rape upon an infant under twelve years of age, at death or at imprisonment in the penitentiary for life. Section 1153, Kentucky Statutes, provides a punishment of imprisonment from five to twenty years upon anyone,- who attempts to commit rape upon an infant under twelve years of age. Section 1154, Kentucky Statutes, provides a punishment in the penitentiary for not less than ten nor more than twenty years, or death, in the discretion of the jury, for anyone, who carnally knows a female twelve years of age or above that age, against her will or consent, or by force, or whilst she is insensible. The acts, denounced in the latter statute, are substantially those, which constitute the crime of rape upon a female of the age of consent at the common law. This section of the statutes is followed by section 1155, supra, which provides a punishment, for one having unlawful carnal knowledge of a female under sixteen years of age or with a female idiot of any age. The acts denounced in section 1155, supra, are, those which constitute the crime of rape, at common law, upon a female under the age of consent, except that the statute
(b) The appellant insists that his motion for a directed verdict should have been sustained for three reasons:
(1) The proof failed to show that any rape had been committed.
(2) The crime was not proven to have been committed within the jurisdiction of the Fayette circuit court.
(3) The evidence was insufficient, under section 240, of the Criminal Code, to sustain the indictment or to put the appellant upon his defense.
(1. b) The first reason relates to the contention that the indictment did not contain averments of the facts, which constituted a crime, and that the evidence did not contain any proof of the facts, which are necessary to constitute the crime of rape. The evidence conduced to support the allegations of the indictment, which, as. above stated, constitute the crime of rape, when committed in the manner alleged in the indictment.
(2. b) The second reason, urged for the propriety of giving a peremptory instruction to the jury to find appellant not guilty, is, that the evidence fails to prove that the crime was committed in Fayette county, so as to give the Fayette circuit court jurisdiction of the offense. It is surplusage to say that the indictment must aver that the crime was committed in Fayette county, and that the proof must support such allegation before a conviction could be allowed to stand. True, no one directly testifies that the crime was committed in Fayette county, but all of the evidence is to the effect, that both appellant and his victim, upon whom it is alleged that he committed the crime, resided in Fayette county, at the time and long before and after the crime was committed, and there is no evidence, which shows that they were ever together at any place, except in that county, and hence, if the crime
(3. b) The third reason urged for sustaining the motion for a directed verdict, is, that the evidence is insufficient, according to section 240, of the Criminal Code, to sustain a conviction. The section, supra, is as follows:
“A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such an offense was committed. ”
The above section has been construed to mean that a confession will not warrant a conviction unless the confession is accompanied by proof, other than the confession, that the offense confessed has been committed — ■ that is, that the corpus delicti of the crime must be proven by evidence, other than the confession. Higgins v. Com., 142 Ky. 651; Wigginton v. Com., 92 Ky. 289; Dugan v. Com., 102 Ky. 252; Gilbert v. Com., 111 Ky. 798; Patterson v. Com. 86 Ky. 313; Poison v. Com., 32 R. 1398; Frazier v. Com., 124 S. W. 797; Green v. Com., 26 R. 1221. If one should confess to having committed the crime of murder, the confession would not be sufficient to uphold a conviction against him, unless it should be proven by other evidence, than the confession, that a man had been slain. The corpus delicti, in the instant case, is proven, when it is shown that sexual intercourse had been had with the female, who was under the age of sixteen years at the time, and by one, who was not her husband. The evidence is conclusive upon that subject. Serpora Taylor was proven to have been under the age of sixteen years and an unmarried person. She was discovered to be pregnant with child in November or early December. In the following August she gave birth to a child and died in child birth. The body of the crime or corpus delicti was thus conclusively'proven. She died in child birth and hence was not before the jury to testify. It was proven that the appellant, when confronted with the charge of having been sexually intimate with the girl, when her pregnancy was first discovered, confessed that he was guilty. He then furnished, as he states, seventy dollars, and as the witness for the Commonwealth deposed, forty dollars, to provide transportation for the girl and her mother to a distant state, in order to avoid a prosecution against him for the crime, and then he
(c.) It is complained that a sheet of paper containing the names and dates of the births of the children of Serpora Taylor’s parents and said to have been written by her father and pinned to a leaf in the family Bible, by him, was admitted as evidence, upon the subject of her age, but the record shows that this paper was admitted without objection upon the part of appellant, and he cannot now complain of its admission. Besides, it was proven by her mother and uncle, that she was only fourteen years of age at the time of the commission of the crime upon her, and they give the exact date of her birth in their testimony.
(c. I.) The appellant, also, complains that during the trial, that the child of Serpora Taylor was permitted to be brought into the court room and exhibited to the jury as evidence of its paternity by appellant, and hence of his guilt of having been carnally intimate with'her, and that the attorney for the Commonwealth made an argument to the jury based upon the supposed resemblance of the child to appellant, and by which it was contended that his guilt was shown. It is insisted that this was an error prejudicial to the rights of appellant. Whether a view of a child alleged to be the fruits of the intimacy of the defendant with the victim of an unlawful carnal knowledge is competent evidence against or in behalf .of one charged with such carnal knowledge, as constituting evidence of his guilt of such crime, or want of guilt, has never been determined by this court. It seems, that when one of a certain race should be charged with the paternity of a child, that a view of the child would be competent evidence, either for or against the defendant, as showing or not showing the racial char
(d.) Wien testifying, as a witness for the Commonwealth, when it was offering its evidence, in chief, the mother of Serpora Taylor testified that appellant, two or three times a week, would take Serpora out for a ride in his automobile. The appellant, when testifying, denied this and stated that he never took her in his automobile at any time. In rebuttal, the attorney for the Commonwealth wa.s permitted to introduce two^or three witnesses, who testified to having seen appellant and the girl, together, riding in an automobile, and appellant complains that this was prejudicial to him. Sections 221 and 223, of the. Criminal Code, provide that the Commonwealth shall first offer its evidence in support of the indictmént and then the defendant may offer evidence in support of his defense. Section 224, Criminal Code, then provides: “The parties may then respectively offer rebutting evidence, only, unless the court for
The evidence given by these rebuttal witnesses seems to have been evidence which might have been introduced in chief, as they testified to associations between the appellant and the girl, but the admission of this evidence, in rebuttal, was a matter within the sound discretion of the trial court and when original evidence is permitted in a criminal trial, in rebuttal, it is ■ not a reversible error, if its admission is not prejudicial to the defendant. Tetterton v. Commonwealth, 28 R. 146. It is impossible to see how the admission of the evidence complained of, if in fact that evidence should have been offered in chief, was in anywise prejudicial to appellant, or affected the fairness of his trial.
(e.) The statute, which was in force at the time the offense was committed, required the jury by its verdict when fixing the punishment of a felony, by imprisonment, where the imprisonment might consist of more than.one fixed period, to fix a minimum and maximum number of years of imprisonment for the accused, but within the time prescribed by law. The court did not so instruct the jury, but instructed it to the effect, that if it found the appellant guilty to fix his punishment at a term of imprisonment of not less than ten nor more than twenty years, as is now provided by the statute. This is complained of as reversible error. Ten years has been the minimum and twenty years the maximum punishment for the crime of which appellant was found guilty, ever since the enactment of section 1155, supra. The jury imposed the minimum punishment provided for the crime and the failure of the court to instruct the jury in accordance with the law in effect, at the time the crime was committed, that is, to fix a minimum and a maximum term of imprisonment, between the minimum and maximum periods allowed by law, was an error, but it could not have been prejudicial to appellant, as the jury fixed upon him the very least punishment allowed by law.
(f.) The appellant complains, also, of the failure of the court to define by an instruction the meaning of the terms “beyond a reasonable doubt,” as used in the instructions. The instruction, which the court gave upon the subject of reasonable doubt of the appellant’s guilt; is in substantial compliance with section 238 of
The judgment is, therefore, affirmed.