Blankenship v. Commonwealth

• Decision Date: 27 May 1930
• Citation: 234 Ky. 531
• Parties: Blankenship v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

Page 531

234 Ky. 531

Blankenship v. Commonwealth.

Court of Appeals of Kentucky.

Decided May 27, 1930.

1. Witnesses. — Court may permit leading question to child of tender years, when necessary to elicit facts (Civil Code of Practice, sec. 595).

2. Witnesses. — Permitting leading questions on direct examination is not reversible error, if witness' answers bear impress of truth and demonstrate that examiner's words were not put in witness' mouth (Civil Code of Practice, sec. 595).

3. Witnesses. — Admission of competent testimony elicited by leading questions is not error, unless practice was so persistently followed as to manifest disregard of law by counsel and abuse of court's discretion (Civil Code of Practice, sec. 595).

4. Witnesses. — Witness' memory may be refreshed by question directing his attention to particular matter.

5. Witnesses. — Questions to child testifying in trial for carnally knowing her as to what, if anything, defendant would do to his or her clothing, held not objectionable as unduly specific in directing her attention to particular subjects.

6. Rape. — Defendant charged with carnally knowing female under 18 with her consent held not entitled to instruction on detention of woman against her will with intent to have carnal knowledge of her, though she could not legally consent (Ky. Stats., secs. 1152-1155, 1158).

Ky. Stats., sec. 1152, covers crime of rape on female under 12 years of age, section 1153, attempt to commit such crime, section 1154, carnal knowledge of female above such age without her consent, section 1155, carnal knowledge of female under 18 with her consent, and section 1158, detention of woman against her will with intent to have carnal knowledge of her.

7. Indictment and Information. — Conviction may be had for lesser degree of crime charged in indictment (Criminal Code of Practice, secs. 262, 263).

8. Criminal Law. — It is neither necessary nor proper to give instruction on feature of case not supported by evidence.

9. Rape. — Child's testimony, corroborated by that of physician, held sufficient to prove penetration, in trial for carnally knowing her (Ky. Stats., sec. 1155).

10. Criminal Law. — Variance of instruction from indictment for carnally knowing female child in giving her middle name held immaterial (Criminal Code of Practice, sec. 128).

Criminal Code of Practice, sec. 128, provides that erroneous allegation as to identity of injured person, described in other respects with sufficient certainty to identify act, is not material.

11. Rape. — Improbability that aged man would mistreat mere child was primarily for jury in his trial for carnally knowing female (Ky. Stats., sec. 1155).

12. Criminal Law. — Refusal of new trial on ground that juror stated before trial that defendant should be imprisoned held not abuse of discretion.

The juror denied the statement, defendant's affidavit did not state when he or his counsel learned of it, and juror stated on voir dire that he had not formed or expressed opinion as to accused's guilt or innocence and knew no reason why he could not give him fair and impartial trial.

13. Criminal Law. — Refusal of new trial for absence of witness, whose testimony at examining trial was read by defendant, held not error.

Defendant did not object to proceeding with trial without such witness, transcript of latter's testimony at examining trial contained substantially same facts mentioned in affidavit supporting motion for new trial, and defendant was not prevented from proving alleged physical fact in witness' possession by other witnesses.

Appeal from Lawrence Circuit Court.

A.O. CARTER and W.D. O'NEAL for appellant.

J.W. CAMMACK, Attorney General, and HOWARD BLACK for appellee.

OPINION OF THE COURT BY JUDGE WILLIS.

Affirming.

Mose Blankenship was convicted of the crime of carnally knowing a female child not his wife, and condemned to serve twenty years in the penitentiary. The indictment charged that defendant was a male over 21 years of age, and that the child was under 12 and over 10 years of age. Upon this appeal it is insisted that error intervened at the trial in the admission of evidence, in failing to instruct the jury upon the whole law of the case, that the evidence does not support the verdict, and in certain other respects which will be noticed as the opinion proceeds.

The only evidence admitted over the objection of appellant was some of the testimony of the little girl. During her examination, the commonwealth's attorney directed her attention to certain matters, and asked her what, if anything, defendant would do to his pants. The witness answered that he would unbutton them. She was then asked, "What would he do with your clothing, if anything," to which the witness answered that he would "pull her panties down." The defendant objected to the line of examination. It is not questioned that the substance of the testimony was competent, but the argument is made that the questions were leading and unduly specific in directing attention of the witness to particular subjects. It is not necessary to determine whether the particular line of examination constituted a leading of the witness, since it is well settled that the trial court in its discretion may permit leading questions when the witness is a child of tender years and such method of examination is necessary in order to elicit the facts. 40 Cyc. secs. 2427-2431. The Civil Code defines a leading question as one that suggests to the witness the answer which the examining party desires. Section 595. They are forbidden on direct examination except under special circumstances making it appear that the interests of justice require it. The practice is not regarded as reversible error in any case if the answer of the witness bears the impress of truth and demonstrates that the examiner's words were not put in the mouth of the witness. Wise v. Foote, 81 Ky. 10. Cf. Western Union Telegraph Co. v. Teague, 134 Ky. 601, 121 S.W. 484. When testimony is competent, although elicited by leading questions, its admission will not be deemed an error, unless the forbidden practice was so persistently indulged as to manifest a disregard of the law on the part of counsel and an abuse of discretion on the part of the trial court. Hall & Little v. Commonwealth, 196 Ky. 167, 244 S.W. 425. It is well known that a leading question propounded to a witness may, by creating an inference in his mind, cause him to testify in accordance with the suggestion conveyed by the question, making his answer rather an echo to the question than a general recollection of events. Moore on Facts, sec. 1268; U.S. v. Lee Huen (D.C.) 118 F. 442; The Lansdowne (D.C.) 105 F. 436. But leading questions nevertheless may stimulate genuine recollection. The right to refresh the memory of a witness is widely recognized and generally conceded, and it is no valid objection to a question that it directs attention to a particular matter. Indeed, it is necessary in the orderly conduct of a trial that the attention of the witness be directed to a particular point. The jury observed the conduct of the witness on direct and cross examination, and there is nothing in the record to suggest that the limits of the law were transcended. 40 Cyc. secs. 2422, 2433; People v. Hinrich, 53 Cal. App. 186, 199 P. 1058; State v. Chase, 106 Or. 263, 211 P. 920; Crank v. State, 165 Ark. 417, 264 S.W. 936. The facts which the child's testimony tended to establish had support in the attending circumstances (Moore on Facts, sec. 1276), and we find no merit in the criticism of the court's ruling on the admission of evidence.

It is further insisted that the court did not properly instruct the jury. The indictment charged a violation of section 1155, Kentucky Statutes, which provides a punishment for every male person who shall carnally know, with her consent, any female child not his wife, under the age of 18 years. The appellant insists that he was entitled to an instruction under section 1158, Kentucky Statutes, which provides a punishment for detaining a woman against her will with intent to have carnal knowledge of her. The argument is advanced that a female under 18 years of age may not legally consent to unlawful intercourse with a man, and that such intercourse involves a detention against her will, regardless of her actual consent. The argument is predicated upon an assumption that, because the infant may not legally consent, the commonwealth is forbidden to introduce the subject of her actual consent. But the argument is unsound. The statute makes it a condition of the crime that the carnal knowledge of the infant be "with her consent." It treats the matter of consent as a fact, but, if the female is under the age of 18, the fact of consent is no protection. Section 1155, Ky. Stats. If the consent of the infant female be not given, the offense committed comes under section 1152 or section 1154, depending upon the age of the victim. This court has held consistently that a female under the age of 18 may not lawfully consent to an act of intercourse (Payne v. Com., 110 S.W. 314, 33 Ky. Law Rep. 229; Fenston v. Com., 82 Ky. 549), but, if actual consent is given by a female who has, irrespective of her age, sufficient mind to enable her to consent, the act does not violate section 1158, Kentucky Statutes. The crime thus described is denounced by section 1155, Kentucky Stats., and the prosecution must be predicated upon that statute. Com. v. Pennington, 189 Ky. 182, 224 S.W. 644; Roseberry v. Com., 227 Ky. 387, 13 S.W. (2d) 263; Sebree v. Com., 200 Ky. 534, 255 S.W. 142.

The decisions upon the subject of rape and the lesser offenses embraced within it are sufficiently explicit, but expressions found in some of the opinions are confusing. If the charge made in an indictment includes lesser degrees of the crime, a conviction may be had of any offense embraced within the indictment. Criminal Code, secs. 262, 263; Bethel v....