Carney v. State

• Decision Date: 27 April 1889
• Citation: 118 Ind. 525,21 N.E. 48
• Parties: Carney v. State.
• Court: Indiana Supreme Court

118 Ind. 525

21 N.E. 48

Carney

v.State.

Supreme Court of Indiana.

April 27, 1889.

Appeal from circuit court, Clark county; Charles P. Ferguson, Judge.

Frank B. Burke, for appellant. George H. Voigt and The Attorney General, for the State.

Elliott, C. J.

The evidence upon which the appellant was convicted of the crime of rape is not of a very satisfactory character, although it is probably true that, if the sole question were whether we should set aside the verdict on the evidence, we should be compelled to sustain the finding of the jury. But, while it may be true that it cannot be said that there is no evidence sustaining the verdict, still it is true that there is much evidence, direct and circumstantial, against it, so that the case is one in which the accused was entitled to have the law given to the jury clearly and accurately. It was not so given. One, at least, of the instructions is radically wrong. That instruction is this: “Evidence has been introduced as to the moral character of the prosecuting witness, and to her reputation for chastity and virtue. You are not to understand from this that a rape cannot be committed on a woman of bad moral character. A woman may be a common prostitute, and still be the victim of a rape. This evidence has been introduced only for the purpose of affecting her credibility as a witness, and as to how far such proof has affected her credibility is for the jury to say, taking all the testimony into consideration.” The accused admitted that he did have sexual intercourse with the witness, but testified that it was with her consent. He introduced a number of witnesses who testified that her reputation for chastity was bad. The principal question was, did the woman consent? Her lack of chastity exerted an important influence upon this question, for the rule is that it is inferable that a courtesan is more likely to consent than a pure woman. Evidence of her unchaste character did more, therefore, than affect her credibility as a witness, for it tended to support the testimony of the accused that she did consent. It affected in a very material manner one of the controlling questions in the case. The court erred in declaring that the evidence was “introduced only for the purpose of affecting her credibility as a witness.” Mr. Bishop says: “This offense may be committed as well on a woman unchaste or a common prostitute as on any other female. In matter of evidence, however, want of chastity may, within recognized limits, be shown as rendering it more probable that she consented.” 2 Bish. Crim. Law, (7th Ed.) § 1119. “To meet the question of assent,” says Mr. Wharton, “it may also be shown that she was a common prostitute, or of...