206 Ky. 1 | Ky. Ct. App. | 1924
Opinion op the Court by
Affirming.
The appellant was indicted and convicted for a violation of section 1155 of the Kentucky Statutes as amended by chapter 17 of the Acts of 1922, his punishment being fixed at two years in the penitentiary, the minimum for the offense of which he was charged. The errors relied upon by him to secure a reversal of that judgment may be grouped under four heads: (1) Error in instructions; (2) error in admission and exclusion of evidence; (3) misconduct of the Commonwealth’s attorney; (4) nonsupport of the verdict by the evidence.
The indictment charges that “on the — day of —, 1923,” and before its finding, the appellant, then over twenty-one years of age, had carnal knowledge of one Ida Marie Bennett with her consent, she then being under eighteen years of age but over sixteen. The evidence of both the Commonwealth and of the appellant showed that in the summer of 1923, the Commonwealth’s witnesses fixing the- date, though not with positive assurance, a’s June 30th, and the appellant’s witnesses fixing it, with more certainty, as May 26th, the prosecutrix, Ida Marie Bennett, who had known and been going with the appellant for a long time prior thereto, with a girl companion met, on a public road near her father’s house, the appellant and a male companion. The reason for thus meeting was because the family of the prosecutrix objected to her keeping company with appellant. The two girls and the two boys then rode in appellant’s Ford down to Beaver Dam, Ohio county, where' the girl friend of the prosecutrix and the. male' companion of the appellant
In addition to the act of intercourse thus claimed, the prosecutrix further .testified that in the fall of 19'22, in August of 1923, and at Thanksgiving of 1923, she and the appellant had also had illicit relations; but the court admonished the jury as each of these other occasions were detailed, that the testimony concerning them should be received by the jury, only for the purposes of corroborating the evidence of the main act of June 30, 1923, if the jury should regard it as corroborative and for no other purpose. Of this there is no complaint, nor could there be under the repeated decisions of this court. On the other hand, the appellant produced witnesses to show that although he had been in the company of the prosecutrix on those other occasions and at the places designated by her in her testimony, yet there were no opportunities for committing the acts claimed by her to have occurred in the fall of 1922, or in August, 1923, and possibly on Thanksgiving, 1923, although the appellant’s evidence as to this last date is vague and unsatisfactory. A great many character witnesses both for and against the prosecutrix and for the appellant were introduced and testified.
With this evidence before it, the court instructed the jury that if it believed from the evidence “to the exclusion of a reasonable doubt that in Ohio county, Kentucky, on or about June 30,.1923, and before the finding
Secondly, he complains of error in admission and exclusion of evidence. 'In this connection, his chief complaint is that he was not permitted to introduce evidence by the cross-examination of the prosecutrix and by the testimony of other witnesses to show that she had been guilty of indiscretions with other men, possibly acts of intercourse with them,’ and that there was then pending in the Ohio circuit court a charge against another man instigated by prosecutrix and similar in all respects to the charge on which appellant was being tried. Such testimony under the facts in this case was, inadmissible. In the case of Walker v. Commonwealth, 204 Ky. 533, 264 S. W. 1082, the defendant was indicted under the same section of the statutes as was the appellant in this case, and, as here, it was there attempted to attack the .truth and veracity of the prosecuting witness by showing her guilty of other similar offenses. This court said:
“Under the. charge in such an indictment neither the chastity of the prosecuting witness nor her relationship with other men is ' involved. ' The single question is whether defendant had sexual intercourse with a person under the age fixed in the statutes. Whether that person has theretofore or thereafter been guilty of a similar offense constitutes no reason why the defendant should not be punished, and the fact that such prosecuting witness had upon such previous occasions contracted a communicable disease, in the absence of special circumstances, does not affect her credibility as a witness.
“If it is desired to impeach her testimony, it must be done either by contradicting her evidence; showing she has made different or inconsistent statements, or that her general reputation for truth and veracity is bad.” •
It is also complained that a number of witnesses, who were only character witnesses, were permitted to testify after they had sat in court and heard all the testimony, although a séparaition of witnesses had, at the beginning of the trial, been asked for, and the court had excluded from the court room all witnesses for each party. However, this is a matter which addresses itself to the discretion of the trial court, Music v. Commonwealth, 186 Ky. 45, qnd inasmuch as these witnesses were
It is next complained that counsel for the Commonwealth was 'guilty of misconduct in his closing argument. The entire argument of the Commonwealth’s attorney has been brought to this court, and while in some respects the language used was somewhat harsh, and it would have probably been better for counsel to have confined himself to a dispassionate discussion of the law and evidence, yet when read as a whole his argument does not appear to have been unduly intemperate, nor can we say that it was prejudicial to any of the substantial rights of the appellant.
Lastly, it is urged that the verdict is not supported by the evidence. The statement of the facts on which appellant was convicted as hereinbefore set out, demonstrates the lack of merit of this contention. The appellant admitted practically everything the prosecutrix claimed concerning the automobile ride of June 30 or May 26th, as the case may be, except the act of intercourse itself. However, he offered no explanation of why he should have sat for some two hours in a Ford on a lonely road in the nighttime with a girl whom he had met surreptitiously, and whom he says he was not courting. The jury meted out to him the least punishment it could, and as we perceive no error in the record prejudicial to his substantial rights, the judgment of the lower court is affirmed.
Judgment affirmed.