Hodge v. Commonwealth

• Decision Date: 17 February 1942
• Citation: 289 Ky. 548,159 S.W.2d 422
• Parties: HODGE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

159 S.W.2d 422

289 Ky. 548

HODGE v. COMMONWEALTH.

Court of Appeals of Kentucky

February 17, 1942

Appeal from Circuit Court, Pulaski County; J. S. Sandusky, Judge.

Van Dern Hodge was convicted of rape of a female under twelve years of age, and he appeals.

Judgment reversed, and cause remanded with directions to set aside judgment and grant a new trial.

Wesley & Son and John S. Cooper, all of Somerset, for appellant.

Hubert Meredith, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for appellee.

RATLIFF Justice.

The appellant has appealed from a judgment of the Pulaski circuit court sentencing him to the penitentiary for a term of fifty years under an indictment charging him with the crime of rape of a female under 12 years of age. In brief of appellant a number of alleged errors are insisted on for reversal of the judgment, one of which is that the court erred in admitting to the jury incompetent testimony prejudicial to appellant's rights.

The appellant is charged with having committed the offense charged in the indictment upon the body of his stepdaughter Ina Jean Bell, who was nine years of age at the time. It appears that on June 11, 1941, the time the offense is alleged to have been committed, the prosecuting witness' mother, wife of appellant, was working in Akron, Ohio, and had left Ina Jean and her seven year old sister, Jewel Bell and Dicky West, a maternal uncle of the children who was 12 years old, in the home with appellant. According to the evidence of the prosecuting witness and Dicky West, on retiring on that night appellant suggested that the prosecuting witness, Ina Jean, sleep with him because "he might get sick," and she slept with appellant. She testified that he had sexual intercourse with her on that night.

On June 13 the prosecuting witness reported the alleged act of intercourse to Ruby West, her mother's sister. A physical examination of the prosecuting witness was made by Drs Weddle and Steiner. Dr. Weddle testified that the prosecuting witness gave a history of having been mistreated by appellant and he made an examination of her private parts and found the vaginal vault was extra large for a girl of her age, and also the hymen was ruptured. He was further asked and answered:

"Q. Was there anything else unusual about the child that you observed, Doctor? A. No, sir.

"Q. To refresh your recollection, let me ask you, Doctor, if her parts were swollen, or there were any evidence of any bruises? A. No--no swelling, no evidences of bruises.

"Q. How did the parts of this child compare with the parts of other girls of her age? A. As I said, the vaginal vault was unusually large for a girl of her age.

"Q. Doctor, would sexual intercourse puncture or rupture the hymen? A. It would, yes."

On cross-examination, however, the doctor stated that the hymen could have been ruptured by means other than sexual intercourse. Dr. Steiner testified that upon the examination made by him he found that the hymen was ruptured and the vaginal vault was larger than it should be for a girl of her age and size, but he found no evidence of any bruises. He also testified that the hymen could have been ruptured by means other than sexual intercourse.

Drs. R. C. Sievers, A. J. Wahle, and E. M. Ewers testified as witnesses for appellant. The substance of their testimony is to the effect that if appellant had had sexual intercourse with the prosecuting witness on June 11, two days later--June 13--at the time she was examined by the two physicians, there would have been bruises, soreness, tenderness on pressure, and perhaps other evidences of trauma on and about her sexual organs or private parts.

Upon cross-examination of Dr. Ewers the attorney for the Commonwealth asked the witness this hypothetical question "Doctor, let me ask you this question; assuming that this little nine year old girl claimed that she had had sexual...