Branham v. Commonwealth

Decision Date21 February 1928
Citation3 S.W.2d 629,223 Ky. 233
PartiesBRANHAM v. COMMONWEALTH.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Pike County.

Willie Branham was convicted of rape, and he appeals. Affirmed.

Daugherty & Barrett, of Pikeville, for appellant.

James W. Cammack, Atty. Gen., and Samuel B. Kirby, Jr., Asst. Atty Gen., for the Commonwealth.

WILLIS J.

Willie Branham was convicted in the Pike circuit court of the crime of rape committed upon his stepdaughter, and his sentence fixed at 12 years and 6 months in the state penitentiary. He has prosecuted this appeal to review the rulings of the trial court.

It is urged that the verdict is flagrantly against the evidence and that the conduct of the commonwealth's attorney on the trial was improper and prejudicial to appellant's substantial rights. In order to dispose of these questions it is necessary to make a brief statement of the facts.

The appellant, when about 20 years of age, married a widow somewhat older, with four children, two of whom were girls named Goldie and Thelma Bartley. Appellant's wife appears to have been an invalid at the time of the events mentioned in this record, and died shortly thereafter and before the trial.

Goldie Bartley testified that she was about 10 or 11 years of age when her mother married the appellant, and that she was 19 years old in August, 1926, when the crime against her was said to have been committed. On the morning of that date she and her sister, Thelma Bartley, went with their stepfather at his request to the woods, about one-half mile from home, to help him cut a hickory tree, peel it, and saw it into axe handle lengths. He took along a shot gun and pistol. They remained in the woods until about 3 o'clock in the afternoon. She says the crime for which appellant was convicted was committed by him while they were in the woods. She stated that appellant told her if she cried for help, he would kill her. On the same occasion he attempted to commit the same offense on her younger sister, but was unable to accomplish his purpose. She testified that she did once cry for help to Clevinger and Green who were working in the woods about one-fourth a mile away. Three or four days after the occurrence, she obtained a warrant for the arrest of her stepfather upon this charge. Thelma Bartley testified substantially to the same facts as related by her sister. Some three months afterwards Goldie Bartley had a miscarriage and was sent to the hospital. Clevinger testified that on the date mentioned he was working in the woods about one-fourth of a mile from the scene of the occurrence complained of, and that he heard children or women folks hollowing, but he could not make out what they wanted. He also heard chopping and a tree fall. Green testified that he was with Clevinger and heard some talking in the woods, but did not recognize it as a call for help.

The defendant testified that he took the girls with him on the occasion in question to help him, as it was customary for the girls to help him in the work on and about the place. He stated that the two girls had left home on several occasions and that he had reprimanded them for it, and on one or more occasions had inflicted corporal punishment upon them. He denied committing the offense, claiming the testimony against him was false. He testified to some improprieties between the prosecuting witness and her brother, but nothing of an incriminatory nature. But that was denied by Goldie Bartley and her brother. Appellant introduced as a witness Ella Adkins, a young girl who had played with the Bartley children, who testified to some indecent familiarity shown by the brother of Goldie Bartley towards his sister. There was testimony sustaining the good reputation of Goldie Bartley and other testimony impeaching the reputation of Ella Adkins. Goldie Bartley and her brother both flatly contradicted the testimony of the Adkins girl.

If the testimony of the stepdaughters was believed, the jury was warranted in finding the appellant guilty, but it is argued here that where it appears from all surrounding circumstances that the case is fabricated and does not bear the stamp of truth, it is not such evidence as will sustain a verdict. Appellant relies on Clark v. Young, 146 Ky. 377, 142 S.W. 1034, L. & N. v. Chambers, 165 Ky. 703, 178 S.W. 1041, Ann. Cas. 1917B, 471, and other cases of similar import. In those cases evidence is defined to mean something of substance and relevant consequence, and not vague, uncertain, or irrelevant matter not carrying the quality of proof, or having fitness to induce conviction. It has been decided also that when the statement of a witness is inherently impossible and absolutely at variance with universally accepted physical laws, it will not afford a scintilla of evidence to support a verdict. Compare L. & N. R. R. Co. v. Quinn, 187 Ky. 607, 219 S.W. 789. But this case is not governed by those authorities. The facts testified to by the witnesses here, while shocking and revolting, are not vague, or indefinite, or irrelevant or inherently impossible, or contrary to physical laws. Goldie Bartley testified to specific acts of the defendant, and is corroborated by her sister, who was present. Appellant admits where he was on the occasion in question, and it was possible for the offense to have been committed.

While the testimony, if true, indicated a state of depravity astonishing to credulity, it would be an equally staggering burden on belief, to assume that these young women deliberately fabricated this whole case against their stepfather.

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  • Blankenship v. Com.
    • United States
    • Kentucky Court of Appeals
    • May 27, 1930
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    • Kentucky Court of Appeals
    • October 16, 1931
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