Brown v. Com.

• Decision Date: 12 November 1897
• Citation: 102 Ky. 227,43 S.W. 214
• Parties: BROWN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

43 S.W. 214

102 Ky. 227

BROWN v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 12, 1897

Appeal from circuit court, Daviess county.

"To be officially reported."

Clint Brown was convicted of rape, and appeals. Reversed.

Sweeney Ellis & Sweeney, for appellant.

W. S Taylor, for appellee.

HAZELRIGG J.

On the defendant's trial for rape, his defense being that carnal knowledge of the prosecutrix was had by him with her consent it was error for the court to refuse to permit him to prove by third parties, and by the prosecuting witness on cross-examination, if he could, acts of a lewd or lascivious character on her part occurring shortly before the alleged rape, such as that other young men had taken undue liberties with her person, by putting their hands under her clothes and feeling her person, to which she submitted without objection. In all the courts it is held admissible to show the reputation of the prosecutrix for general chastity by general evidence, but in some of the states it is held incompetent to prove particular acts of unchastity. We think, however, the contrary rule is more in accord with reason. If the prosecutrix in fact permitted such undue liberties, to the extent indicated, the jury may gather some light on the question of whether she the more likely consented to the intercourse. It may be, and is, far from conclusive; but it is, at least, somewhat relevant to the inquiry. The cases of Benstine v. State, 2 Lea, 169, Woods v People, 55 N.Y. 515, State v. Johnson, 25 Vt. 512, and State v. Murray, 63 N.C. 31, seem to be directly in point.

Again under the first instruction, the jury was authorized to convict the defendant if he had carnal knowledge of the prosecutrix "against her will or consent, or by force, or by putting her in fear." Rape is the unlawful carnal knowledge of a female by force, and without her consent. 4 Bl. Comm. 210; 2 Archb. Cr. Prac. 152; 1 Russ. Crimes (9th Ed.) 904, 912. It is the ravishing of a woman against her will, and without her consent. 1 East, P. C. c. 4, § 4. 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. If the prosecutrix passively submitted, though without actually consenting, to the...