Abbott v. Commonwealth

• Decision Date: 20 May 1930
• Citation: 28 S.W.2d 486,234 Ky. 423
• Parties: ABBOTT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

28 S.W.2d 486

234 Ky. 423

ABBOTT v. COMMONWEALTH.

Court of Appeals of Kentucky

May 20, 1930

Appeal from Circuit Court, Wayne County.

Blueford Abbott was convicted of rape, and he appeals.

Affirmed.

J. C Davis, of Monticello, for appellant.

J. W Cammack, Atty. Gen., and James M. Gilbert, Asst. Atty. Gen for the Commonwealth.

WILLIS J.

Blueford Abbott was convicted of the crime of rape and condemned to suffer death by hanging in the county where the crime was committed. Ky. Stats. § 1137--1. He is here insisting that error to his prejudice intervened at the trial in the rejection of evidence offered by him and in an instruction given to the jury.

1. The defendant proved by the circuit clerk that a warrant for the arrest of defendant issued by the county judge had been transmitted to his office with papers for the grand jury and was in his custody. An offer to read the contents of the warrant to the jury met with an objection on the part of the commonwealth, which was sustained by the court. The warrant was not admitted in evidence, and the ruling furnishes the basis for appellant's first complaint. It appears by an avowal that the warrant charged the appellant with an assault upon the prosecuting witness. It is argued that the paper was admissible as a contradiction of the testimony of the prosecuting witness. She was asked nothing respecting statements made to the county judge, or concerning any affidavit she may have made before the county judge for the procurement of a warrant. An affidavit setting forth the facts showing the commission of a public offense was necessary before the magistrate could issue a warrant, unless he had personal knowledge thereof. Criminal Code of Practice, § 31; Ky. Stats. § 1372. Manifestly no testimony of the witness could be contradicted by the warrant issued by the county judge. It contained no statement made by her. It was not accompanied by any affidavit of the witness, or by any proof that a statement was made by her to the officer. If the witness made inconsistent statements relevant to the issue they were admissible (Civil Code of Practice,§ 597), but the warrant itself was not competent for any purpose. The proper method of introducing such contradictory matter is well settled by the decisions. Civil Code § 598. Duke v. Com., 191 Ky. 138, 229 S.W. 122; Banks v. Com., 190 Ky. 330, 227 S.W. 455; Hayden v. Com., 140 Ky. 634, 131 S.W. 521; Stinson v. Com., 96 S.W. 463, 29 Ky. Law Rep. 733. That method was not observed in this instance. The prosecuting witness inferentially admitted on cross-examination that she had testified at an examining trial to the effect that she did not know whether the appellant had succeeded in his attempt. She explained, however, that she was confused at the time and did not understand the question, or comprehend the meaning of her answer thereto. She testified positively at the trial to facts showing the essential elements of the crime with which defendant was charged (Hale v. Com., 196 Ky. 44, 244 S.W. 78; Moseley v. Com., 206 Ky. 173, 266 S.W. 1048), and obviously her credibility was for the jury. Fairchild v. Com., 208 Ky. 531, 271 S.W. 584; Farina v. Com., 221 Ky. 148, 298 S.W. 385; Jamerson v. Com., 222 Ky. 70, 299 S.W. 1093; Branham v. Com., 223 Ky. 233, 3 S.W.2d 629.

2. The second complaint is leveled at the second instruction to the jury which defined rape as referred to in the first instruction to mean "the penetration of the female organ, however slight such penetration may be, by the male organ by force or without the will or consent of the female." The instruction was not accurate, since the act must have been accomplished by force, actual or constructive, and against the will of the female. White v. Com., 96 Ky. 180, 28 S.W. 340, 16 Ky. Law Rep. 421; Payne v. Com., 110 S.W. 311, 33 Ky. Law Rep. 229; Malone v. Com., 91 Ky. 307, 15 S.W. 856, 12 Ky. Law Rep. 895. It is true that in Nider v. Com., 140 Ky. 684, 131 S.W. 1024, 1025, Ann. Cas. 1913E, 1246, the court said "under an indictment for rape there can be no conviction unless its accomplishment be by force or without the consent or against the will of the female." But in Brown v. Com., 102 Ky. 227, 43 S.W. 214, 19 Ky. Law Rep. 1174, the court criticised an instruction which authorized a conviction of the defendant if he had carnal knowledge with the prosecutrix "against her will or consent, or by force, or by putting her in fear." In that case it was said:

"Force, actual or constructive, is a necessary ingredient in the crime, except in cases not now involved; and a conviction in this case should not have been permitted unless the act was committed forcibly, and against the will of the prosecutrix. The instruction hardly comes up to this requirement."

The defense in that case consisted of a claim that the act committed was with the consent of the prosecutrix. The evidence was in sharp conflict upon that issue, and the error in the instruction thus became important. In the instant case the indictment charged that the defendant "did unlawfully, feloniously and violently make an assault upon Ruby Taylor, a female above twelve years of age, and then and there, forcibly and against her will and consent, ravish and have carnal knowledge of her." The first instruction required the jury to believe from the evidence beyond a reasonable doubt that the defendant had unlawful carnal knowledge of Ruby Taylor "by force and against her will." The verdict of the jury found the defendant guilty "as charged in the indictment." The uncontradicted evidence was to the effect that the defendant had committed a most brutal assault upon the young lady perpetrating all of the acts comprising the essential ingredients of the crime of rape. There was no evidence whatever of any consent to the act, or any lack of resistance to the...