196 Ky. 44 | Ky. Ct. App. | 1922
Opinion op the Court by
■ Affirming.
Lawrence Hale was convicted of the crime of unlawfully carnally knowing a female, under the age of sixteen 'years, denounced by section 1155, Kentucky Statutes, 'and sentenced to serve a term of ten years, in the penitentiary, as a penalty for the crime. He has appealed from the judgment, and seeks a reversal on account of several alleged errors of the trial court, which will be
(a) It is insisted, first, that the guilt of appellant of the crime depended upon the truth of the testimony of the female, which although slightly corroborated, without it there would be no evidence upon which to submit the case to the jury, and that she was so feeble-minded as to-be incapacitated from giving testimony, and for that reason she should not have been permitted to testify, and that his substantial rights were prejudiced, by the error of the court, in permitting her to testify. There is no-warrant for this contention in the record, except the testimony of the father of the female, who deposed that the girl was “weak-minded, and did not know right from wrong, and would do what any person told her, one person as quick as another.” This statement of the father was made after -the girl had testified. No objection was made to the -competency of the girl, as a witness, when she was offered as such, nor after that time, nor did the appellant endeavor to show 'by any evidence the ineompetency of the witness, except as above stated, nor was any objection to her competency made after that time. The failure of appellant to object to the- witness testifying, because incompetent for want of mental capacity, was a waiver of objection upon that ground, as a party may waive an objection to the competency of -a witness, and this would seem to be- a bar to any further complaint. A person, who is offered as a witness, is presumed to be competent to testify until the contrary is -shown and the burden of showing incompetency is upon the party objecting upon that ground. Covington v. O’Meara, 133 Ky. 762; Cole v. Barbour, 33 R. I. 414; People v. Harrison, 123 Pac. 200. If an -objection is made to a witness, because not mentally competent to testify, the court -must determine the question, before the witness is allowed to testify, and this, the court may do from the appearance, conduct and speech of the witness an'd from any relevant testimony that may be offered, and the witness is admissible to testify, if it appears, that he has capacity .sufficient to comprehend the obligations of an oath, and to give a fairly correct account -of the things he has seen and heard in reference to the questions at issue. When the -court admits the witness to testify, his credibility is a question for the jury. Covington v. O’Meara, supra; Barker v. Washington, 140 Amer. St. Rep. 640; People v. Enright,
(b) The appellant contends, that the court erred in not instructing the jury, as to the entire law, relating to the issues of the action. This contention is based, upon the insistence, that the evidence for the Commonwealth did not prove a penetration of the person of the female by the appellant, or at least that the evidence was such and of such character, that the jury might have found as a fact, there was no penetration and only an attempt to commit a crime was made, and hence, the court erred in failing to give the jury a<n instruction defining the offense of attempting to have carnal knowledge of a female, under the age of sixteen years, and prescribing the punishment 'therefor, so that, if the jury, if convinced, that the crime had not been accomplished, but, only attempted, could have found appellant g-uilty of such lower offense, and fixed a much less severe punishment. There could be no doubt of the soundness of this contention, if the state of the evidence had been such as is insisted for appellant. The offense of unlawfully carnally knowing a female under the age of sixteen years, cannot be committed, unless there is some degree of penetration, by the male organ, into that of the female, though it may be slight. In a state of case, where the reason for the failure to accomplish the first named crime is because no penetration is made, but an attempt to do so, the court should instruct, as here contended. White v. Commonwealth, 96 Ky. 180; Nider v. Commonwealth, 140 Ky. 686. The crime denounced by section 1155, supra, is but a degree' of the crime of rape and the rule is as old as the crime itself, that to constitute the crime of rape, some degree of penetration must be proven. Frierson v. Commonwealth, 175 Ky. 684. The fact of penetration may be proven by
The judgment is therefore affirmed.