119 Ky. 280 | Ky. Ct. App. | 1904
Opinion of the court by
Affirming.
Upon a second trial in the Jefferson Circuit Court, crixni
The girl upon whom the alleged rape was committed was seventeen years of age at the.time of its occurrence. She is a white girl, and then living at the home of C. S. Wymond, in the city of Louisville, where she was employed as a house servant. According to her testimony, the crime charged against the appellant was committed' under the following-circumstances : She and a young man by the name of Terhune, who had escorted her home, sat from 7:30 to 9 o’clock in the evening upon the steps of the rear entrance to the Wymond residence, engaged in conversation. At or about 9 o’clock Terhune left, after which the girl remained upon the steps long enough to unlace one or both of her shoes preparatory to going into the house and retiring for the night. Then arising, she was about to insert the house key in her possession in the lock of the door, when the appelant jumped up beside the fence only a few feet away, and, pointing- a pistol at her, said: “You open that door and I will kill you.” She did not open the door, but instead, at a further order from appellant, enforced by the continued pointing of the pistol at her, went to where he was standing, and when she got in reach of him he grabbed her by the hand and pulled
The foregoing evidence presents in the. main the facts upon which the conviction of appellant was secured. If she is to be believed, there was in the facts testified to by her sufficient evidence to warrant the belief upon the part of the jury that she was subjected to force and violence by appellant, and through fear and duress yielded to his assault, and was thereby compelled to have sexual intercourse with him. Upon the other hand, appellant testified that he did have intercourse with her upon the occasion complained of, and upon divers other and previous occasions, but that in each instance it was with her consent, and most generally for hire. Indeed, if lie told the truth, it is apparent that the girl is hardly less depraved than he. He also proved by one Harris that he had seen appellant and Annie Scheneble in frequent conversations, and that he had seen her go to the room over the stable where appellant slept. Other witnesses, some of whom were apparently reputable, and others doubtless not so, testified that the reputation of Annie Scheneble for truth and virtue was bad. It was, however, the province of the jury to weigh the evidence and pass upon the credibility of the witnesses, and they had the right to accept the testimony of the girl as true, and reject that of the witnesses introduced in behalf of appellant; and that they did accept her version of the matter, and believe him guilty, is shown by the verdict returned. As there was some evidence conducing to show the appellant’s guilt, this court will not undertake to say that the verdict was unauthorized. Obviously, the punishment
The court gave but two instructions. They presented all the law of the case, expressed' with brevity and clearness that left no doubt of their meaning. The instructions asked by appellant were properly refused by the court; they do not present the law7 of the crime of rape as it is understood and held in this State, but are based upon the decisions of the courts of last resort of other States which still adhere to the rigid rules of the common law. Under our statute (section 1154] Ky. St., 1903) and the recent decisions of this court, physical force applied to the person of the female is not necessary to constitute the crime of rape. If the prosecutrix is made to yield through fear caused by threats of violence or injury, such means will constitute force within the meaning of the law. Clymer v. Commonwealth, 64 S. W., 409, 23 Ky. Law Rep., 1041; Brown v. Commonwealth, 102 Ky., 227, 19 R., 1174, 43 S. W., 214.
While numerous errors were assigned by counsel for appellant, only two or three of them are relied on in argument. Their chief contention is that the verdict of the jury is not supported by the evidence. We have already disposed of this contention, but the further point made in connection therewith by counsel for appellant, that the testimony of the prosecutrix lacks corroboration, is not in our opinion sustained by the evidence. The fact that appellant had intercourse. with her is admitted by him. The further facts that he at once left the neighborhood and his then residence, and kept out of the hands of the officers .of the law for three weeks; that she was in distress early the following day, and then complained of the outrage upon her, and at once set the police upon his track; and the evidence furnished by the appearance of the grass where he concealed himself by
Another alleged error complained of is that the assistant Commonwealth’s attorney was permitted to ask many leading questions of the prosecutrix, and was aided by questions put by the court. It is true that some leading questions were asked the prosecutrix by counsel and the court, but they were made necessary by the evident embarrassment and consequent reluctance of the witness to relate the facts. The indecent character of the transaction about which she was required to testify in the presence of the jury and surrounding audience of curious people was well calculated to confuse a young and inexperienced girl. Under the circumstances, we think the course pursued by the court and counsel in getting from the prosecutrix the facts! of the outrage complained of was necessary and altogether proper.
Yet.another complaint made by appellant is that the trial judge made certain alleged improper remarks to the jury, during their deliberations, in attempting to impress upon them the importance of reaching a verdict. It is not shown by the bill of exceptions that the alleged improper remarks of the judge were excepted to at the time they were made, and as this error, if any, was complained of for the first time on the motion and in the grounds for a new trial, we are not at liberty to consider it..
Finding the record free of reversible error, the judgment is affirmed1.