140 Ky. 12 | Ky. Ct. App. | 1910
Opinion of the Court by
Affirming.
The grand jury of Franklin county, by an indictment, accused the appellant, Pearl Merchant, of the crime of unlawfully and forcibly taking and detaining -a woman, Usetta Williamson, who was an infant female 8 years of age, against her will, with" intent to have carnal knowledge of her person. To this indictment the accused entered a plea of not guilty. A trial before a jury resulted in a verdict of guilty, the punishment of the accused being fixed at confinement in the penitentiary for a term of two years. Of" the judgment based upon this verdict the accused now complains.
The principal complaint on the part of the accused is that the verdict is contrary to the evidence. On this point, only two witnesses testified — the little prosecuting witness for the Commonwealth, and the accused for himself. The former testified that the accused took her in his boat and rowed her up Benson creek for some distance above where her parents reside, and then, landing, he took her out into a field, among high weeds, and
The defendant also complains that the little girl was so immature in mind that her evidence was not worthy of acceptance by the jury, and the court should have excluded it because of her extreme youth. The law recognizes no exact period of time at which infants'are allowed to testify. This depends upon the individual capacity of each witness. Whenever it is apparent that the witness knows right from wrong and recognizes that punishment by the Almighty will follow falsehood, then he is permitted to testify and the jury authorized to give such credit to the testimony as they may think it deserves. We think the court correctly permitted the prosecuting witness to testify in this case. Her testimony shows that she understood what she was saying and exhibited due consciousness of the solemnity' of an oath.
We sympathize with counsel for the accused in their complaint that, upon a charge such as this, the jury are often swept away by sympathy or passion and that it is exceedingly difficult to defend a man who is solemnly charged by a female infant with outrage upon her person. But this is a hardship which grows out of the exigencies of the situation, and the law permits the jury to judge of the facts, and we do not feel authorized to give their verdict less weight than the law warrants. We also recognize that there are facts shown by the testimony which militate against the truthfulness of the story of the infant. She did not complain of the attempt upon her person for a long time after it took place, hut she explained this by saying that the accused told her not to tell and she was afraid to disobey him.
Judgment affirmed.