96 Ky. 180 | Ky. Ct. App. | 1894
delivered the opinion of the court.
At the September term, 1894, of the Henderson Circuit Court, the grand jury of Henderson county found an indictment against appellant for rape, committed in manner and form as follows: “The said Samuel White, on the-29th day of July, 1894, and before the finding of this indictment, in the said county of Henderson, did unlawfully, violently and feloniously make an assault upon the body of one Lilly Ann Lewis, a female infant under twelve years of age, and her, the said Lilly Ann Lewis, then and there, forcibly and against her will, feloniously did ravish and car
To this indictment the defendant entered the plea of “not guilty,” and, on trial had, the jury returned into court the following verdict: “We, the jury, find the within named defendant not guilty as charged, but guilty of having carnal knowledge with the infant, Lilly Ann Lewis, and fix his punishment at confinement in the penitentiary for ten years.”
The defendant entered a motion for a new trial, and in support thereof filed the following reasons: The verdict of the jury is against the law and evidence; the court erred in permitting the prosecuting witness, Lilly Ann Lewis, to testify; the court erred in refusing to permit defendant’s witnesses to state that the house where the infant is charged to have been raped was a bawdy-house, and had the reputation of being such in the neighborhood; the court erred in giving to the jury instructions 1, 2, 3 and 4, and in refusing to give to the jury instructions A and B, asked to be given by defendant, to all of which the defendant objected and excepted.
The motion for a new trial having been overruled, and judgment having been pronounced against the defendant, he prosecutes this appeal to reverse the judgment of the lower court.
This court has held repeatedly, that it has no power to reverse a judgment of conviction in a criminal prosecution upon the ground that the evidence is not sufficient to support the verdict, being restricted to the single inquiry, whether there was any evidence before the jury conducing to show the guilt of the
Mr. Blacks tone, in his Commentaries, Book 4, page 213, third edition thereof, says: “Moreover, if the rape be charged to be committed on an infant under twelve years of age, she may still be a competent witness if she hath sense and understanding to know the nature and obligations of an oath, or even to be sensible of the wickedness of telling a deliberate lie. Nay, though she hath not, it is thought by Sir Matthew Hale, that she ought to be heard, without oath, to give the court information; and others have held that what the child told her mother or other relations may be given in evidence, since the nature of the case admits frequently of no better proof. But it is now settled, that no hearsay evidence can be given of the declarations of a child who hath not ■capacity to be sworn, nor can such child be examined in court without oath; and that there is no determinate age at which the oath of a child ought ■either to be admitted or rejected. Yet, where the evidence of children is admitted, it is much to b@ wished, in order to render their evidence credible,
The evidence rejected, if admitted, would only have gone to the reputation of the place generally. The method of impeaching the character of witnesses for truth and veracity, virtue and morality, is well settled by law, and should always be done by direct, positive testimony of those who are acquainted with the reputation of the witness for either, among his or her neighbors and acquaintances, and not inferentially
As to the instructions given by the court, it is only necessary for the purposes of this appeal to consider instruction No. 2, which reads as follows: “If they have a reasonable doubt as to whether or not the defendant is guilty of rape as above defined, but believe to the exclusion of a reasonable doubt that he had carnal knowledge of said' female with her consent, they will find him not guilty of rape, but guilty of having carnal knowledge with an infant female under twelve years of age, and fix his confinement in the penitentiary from ten to twenty years in their discretion. To have carnal knowledge with the infant’s consent, there must have been some penetration, however slight, if the parts of the infant were sufficiently developed to admit it; but if not so developed, then the pressing or rubbing his private parts against her private parts for the purpose of' producing an emission, was sufficient to constitute carnal knowledge;” the question raised, being whether or not penetration, however slight, is necessary to constitute carnal knowledge. In Beck’s Medical Jurisprudence, vol. 1, page 224, we find this language: “Rape is the carnal knowledge of a female forcibly and against her will. It has been a subject of legal discussion as to what constitutes this carnal knowledge. Some judges have -supposed that penetration alone was sufficient, while others have contended that penetration and emission are both necessary.” But on page 226 of the same book, Mr, Chitty observes: “It is certain that no direct evidence need be
Mr. Wharton, in his work on Criminal Law, eighth edition, vol. 1, sections 554 and 555, says :
“A very considerable doubt,” remarks Mr. East, “having arisen as to what shall be considered sufficient evidence of the actual commission of this offense; that is, in what carnal knowledge consists, it is necessary to enter into an inquiry which would otherwise be offensive to decency. Considering the nature of the crime, that it is a brutal and violent attack upon the honor and chastity of the weaker sex, it seems more natural and consonant to those sentiments of laudable indignation which induced our ancient law-givers to rank this offense among felonies, if all further inquiry were unnecessary after satisfactory proof of the violence having been perpetrated by actual penetration of the unhappy sufferer’s body. The quick sense of honor, the pride of virtue, which nature, to render the sex amiable, hath implanted in the female heart, as Mr. Justice Poster has expressed himself, is already violated past redemption, and the injurious consequences to society are in every respect complete. Upon what principle and for what rational purpose any further investigation came to be supposed necessary, the books which record the dicta to that effect do not furnish a trace.” The doubts, however, that existed in England, have been put to rest by 9 Greo. IV c. 31, making the least penetration*187 -enough; and in this country the proof of emission seems never to have been required. In several instances, in fact, it has been held that as the essence of the crime is the violence done to the person and feelings of the woman, which is completed by penetration without emission, it will be sufficient to prove penetration. But while the slightest penetration is sufficient, there must be specific proof of some, though the proof of this may be inferred from circumstances aside from the statement of the party injured. It must be shown, to adopt the phraseology of Tindal, C. J., and afterwards of Williams, J., that the private parts of the male entered, at least to some extent, in those of the female. At one time it was even thought that there must be proof that the hymen was ruptured, (hough this is no longer considered necessary.'
The law may now, indeed, be considered as settled, that while the rupturing of the hymen is not considered indispensable to a conviction, there must be proof of some degree of entrance of the male organ “within the labia of the pudendum;” and the practice seems to be, to judge from the eases just cited, not to permit a conviction in which it is alleged violence was done, without medical proof of the fact, whenever such proof is attainable. It seems but right both in order to rectify mistakes and to supply the information necessary to convict, that the prosecutrix should be advised of this, so that she can take the necessary steps to secure such examination in due time.
If this test be generally insisted upon, there is no danger of any conviction failing because of non-com
And in the case of Reg. v. Lines, reported in 47 English Common Law Reports, 393, on an indictment for carnally knowing and abusing a child under the age of ten years, it. appeared from the cross-examination of the surgeon, with respect to the penetration, that the hymen of the child was not ruptured, but that upon the hymen there was a venereal sore, which must have arisen from actual contact with the virile member of a man. Counsel for the prisoner submitted that all these appearances were consistent with the fact of the private parts of the prisoner being in actual contact with the private parts of the child, and yet no penetration sufficient to constitute the whole offense may have taken place. The court said: “I shall leave it to the jury to say whether, at any time, any part of the virile member of the prisoner was within the ‘labia of the pudendum’ of the prosecutrix; for if ever it was, no matter how little, that it will be sufficient to constitute a penetration, and the jury ought to convict the prisoner of the complete offense.”
Section 344 of the Criminal Code provides, that a judgment of conviction shall be reversed for any error of law appearing on the record, when, upon consid
The instruction asked to be given by the Commonwealth’s Attorney and refused by the court, raised the question as to whether or not an infant under ten years of age could consent to carnal knowledge, of her person. The statute reads as follows:
*191 “Sec. 1152. Whoever shall be guilty of the crime of rape upon the body of an infant under twelve years of age, shall be punished with death, or with confinement in the penitentiary for life, in the discretion of the jury.
“Sec. 1155. Whoever shall carnally know a female under the age of twelve years, or an idiot, shall be confined in the penitentiary not less than ten nor more than twenty years.”
This court held in the case of Fenston v. Commonwealth, 82 Ky., 549, opinion by Judge Lewis, that “a female under that age is presumed to be, as an idiot in fact is, without capacity and discretion to comprehend fully the consequences of yielding to the ravisher, or strength of will to resist his influence and importunities. Hence, carnal knowledge of her, even with her nominal consent, is, in legal contemplation, forcible and against her will; and though not deemed of as heinous nature, nor punished with the same severity, as when, in fact, forcible and against her consent, is, nevertheless, in the meaning of the statute, rape, and punished as such.”
Because of error in instruction No. 2, the judgment is reversed, and this case is remanded for proceedings consistent with this opinion.