151 Ky. 10 | Ky. Ct. App. | 1912
Opinion op the Court by
Affirming,
Appellant was tried upon a charge of rape and the death penalty was inflicted. He asks a reversal because, as he claims, he did not have a fair and impartial trial for two reasons: First, ‘ ‘because the evidence is not of a positive and certain character as to justify a verdict of death;” second, “because the court erred in rejecting certain testimony which was pertinent to 'the cause and was competent.” Other reasons were assigned in the grounds for a new trail, but are without merit and are. not referred to in appellant’s brief. Only two grounds for a reversal are discussed in appellant’s brief and those are the two' above copied. The second reason assigned is based upon the court’s refusal to allow the affidavit for and the warrant of arrest upon which he was arrested, to be read to the jury as evidence.
The facts are as follows: It appears that on April 3, 1912, the day the offense is alleged to have been com- • mitted, J. N. Penick, a deputy sheriff of the county, made an affidavit upon which a warrant was issued for
The question of insufficient evidence to authorize the verdict, in short, is this: In the first instruction the court fold the jury that before they could find the appellant guilty of the crime of rape, they should believe from the evidence beyond a reasonable doubt that the male organ of appellant made an entry into the female organ of the prosecuting witness. The prosecuting witness testified that appellant grabbed her, threw a quilt around her head, choked her, took out his organ and had intercourse with her, and that she knew he had an emission for she afterwards found it upon her person.
Appellant contends that this evidence is not sufficient for the reason that the witness did not state that there was any entrance of his organ into hers. He says that the word “intercourse,” as used by her was insufficient to meet the requirements set forth by the court in the instructions. This witness was a married
For these reasons, the judgment of the lower court is affirmed.