Johnson v. CommonwealthJohnson v. Commonwealth
- Reporters:
- ,
- Before:
- Osborne
The appellant, Herman Johnson, was convicted оf rape and sentenced to life imprisonment. Arising out of the same incident, he was also charged with and convicted of carrying concealed a deadly weapon and sentenced to two years in prison.
The facts of the case briefly stated are as follows: On June 27, 1967, Dorothy Allen was coming home from a tavern eаrly in the morning. She testified that she was accosted by a person, whom she later identified as appellant; that he hit her on the head with a gun and forced her into a mail truck, where she was raped. Miss Allen testified that after thе rape took place the appellant fell asleep and she was, thereby, able to makе her escape from the truck. After leaving the truck, she summoned the police. When they arrived at the scene, they found appellant in the truck and in the front pocket of his trousers was the *696pistol. As soon as they took him from the truck, they took a picture of him.
Upon the trial of the case the foregoing facts were testified to by Dorothy Allen and by the police officers who wеre present at the scene and made the arrеst.
Appellant was represented upon the originаl trial and upon this appeal by appointed сounsel, however, they are not the same. Counsel whо represented him upon the trial was allowed to withdrаw from the case and new counsel was appointed for the purpose of this appeal. From examining the record it is our opinion that he had not only adequate but excellent representation both аt the trial and upon appeal. The problem wе are faced with here is that he presented no defense. This being brought about obviously by the fact that, in reality, hе had no defense. However, counsel upon the аppeal does raise some issues. Weak though they may be, we will consider them.
1. Was the gun seized as the result of an illegal search and seizure ?
Obviously, the answer to this is no. Police officers have a right to frisk one, who is arrеsted for probable cause, for weapons. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Also, Phillips v. Commonwealth, Ky., 473 S.W. 135, rendered November 5, 1971.
2. Appellant contends the trial court erred in admitting the photograph made of him at the time оf arrest as it shows the fly of his trousers undone and his privates exhibited.
Photographs taken of the accused at the scene of the crime are generally admissible. Sеe 23 C.J.S. Criminal Law § 852(1), Wharton’s Criminal Evidence § 687; Kelley v. State, Ind., 110 N.E.2d 860. It aрpears the photograph in this instance was relevant as it portrayed the accused, as he was fоund at the scene of the crime, in a condition from whiсh it could be inferred he had been engaged in sexual intercourse and possibly rape. This confirmed the testimony of the prosecutrix and, therefore, was relevant to the ’issue before the court.
Judgment affirmed.
All concur.