Champ v. Commonwealth

• Decision Date: 16 July 1859
• Citation: 59 Ky. 17
• Parties: Champ vs. Commonwealth.
• Court: Kentucky Court of Appeals

59 Ky. 17

Champ vs. Commonwealth.

Court of Appeals of Kentucky.

July 16, 1859.

APPEAL FROM FAYETTE CIRCUIT COURT.

BRECKINRIDGE and BECK, for appellant.

ROBINSON & JOHNSON, on same side.

J. W. MOORE, on same side.

A. J. JAMES, Attorney General, for Commonwealth.

G. W. WILLIAMS, on same side.

JUDGE DUVALL DELIVERED THE OPINION OF THE COURT:

Robert H. Champ was indicted for a rape, committed upon the person of Mrs. Sally Champ, in June, 1858.

He was found guilty, and, in conformity with the verdict of the jury, was sentenced to confinement in the penitentiary for fifteen years.

He has appealed to this court, and seeks a reversal of the judgment of conviction upon the single ground that the court below erred to his prejudice, in excluding certain evidence offered by him on the trial.

To a proper understanding of the questions to be considered, a notice of some of the testimony is necessary.

Mrs. Champ was the first witness introduced by the Commonwealth. She stated in substance that she was the widow of Thomas J. Champ, who was a brother of the accused, and who had been dead about six years; that she was about twenty-eight years of age; that the accused came to her house on a Tuesday in the month of June, about eight o'clock in the morning, there being then no one at home except herself and her youngest daughter, a negro woman, and a negro girl; that after sitting together a short time in the hall, Champ said he had come to see her new window blinds, his wife wishing to get some like them; that he expressed a wish to see the blinds, and they both went into the parlor, she going to the front window and opening a shutter; he went to the back window, and as he went, he pushed the door to. He seemed to be examining the blinds, having pulled aside the curtains. She went to where he was, took hold of one of the cords, raised the blind up and down, then reached across and took hold of the other cord, and showed him how it worked. "He said, the blinds were pretty, but not so pretty as you are. I did not say a word, but turned and started to go out. As I was about to take hold of the knob of the door, he caught me in his arms. He had a vial in his hand; I screamed twice; he grasped my left arm with his right hand, and with his left he put the vial to my nose; I remember nothing more till it was too late." She further stated that her consciousness returned before the completion of the act of violence; that she rose from the floor and fell in the hall, Champ passing out by her; she then rose partly, and fell again in her own room; a servant girl came in and threw water in her face, and she told the girl to go for her father and mother, as she did not think she could live, and to go for her nephew, Thomas Brand, who was at work in the field. Brand soon came in, and asked her what was the matter? She replied, that Champ had ruined her. Champ then came in, and said to Brand, "You see, Thomas, she is crazy; she is the craziest woman you ever saw." She told Champ that he knew that she was not crazy, and knew what he had done; ordered him to leave the house, and never come in it again, and that she did not see him again. That Mrs. Martin, Miss Martin, and Mrs. Turney, soon afterwards came in, and that they, in the evening, examined her person.

In a previous part of her statement the witness related an incident that occurred on the Saturday preceding the day of the occurrence. She and her children went by Champ's house on their way to a picnic and school celebration in the neighborhood. She and Champ rode together in her buggy from his house to the picnic, and that, as they were going on, he remarked that she was wearing a pretty bonnet, and that she was a pretty woman, and he wished she was his wife; that she expressed indignation at the remark, when he asked her if she could not take a joke, and said he would not joke again in that way.

On cross-examination, she stated that Champ was one of the administrators of her husband, and that until the incident just mentioned his conduct towards her had always been that of a gentleman and a brother-in-law. She said she did not know what was in the vial, and did not notice any smell; that she was weak from fright, and did not know how long he held the vial to her nose; that all seemed as if it were done in an instant, nor did she know when she fell; and did not know what the vial contained. She further stated, that on Monday night, before the occurrence, she dreamed that Champ had stabbed her, and told the dream next morning at breakfast to her nephew, Brand, remarking at the time that it was strange a person should have such a dream about their best friend; that the dream made no impression. That about a year previously, a gipsy had called at her house, and had told her sister that a brother-in-law of the witness would seek to do her an injury that she learned this from her sister; but the story had made no impression upon her, as she did not believe in such things. She also spoke of having heard a noise the night before in an attic in which she kept groceries, some of which had been previously stolen, and she thought, on hearing the noise, that some of her servants might be up there taking them. She and her nephew went up into the attic and found that the noise had been occasioned by a plank that a cat had thrown off a barrel of sugar. She stated that she had never had an hysterical, or any other description of fit, in her life; that she never had had any delusion, had never had any disease in her female organs, and that her monthly courses had always been regular.

Mrs. Martin and Mrs. Turney proved facts tending to corroborate the testimony of Mrs. Champ. They stated that they reached her house soon after the occurrence, and found her laboring under great suffering, physical and mental; that they made an examination of her person and of her garments; that there were bruises on her forehead, in the direction of her temple, and marks of violence on the left arm, like the impression of fingers across the arm; that her organs of generation were swollen and bruised, exhibiting evidence of violence; that there were stains and spots upon her linen, the cause and character of which were stated by the witnesses; that Mrs. Champ complained of great soreness, and applications suitable to reduce the inflammation and allay the pain were made to the bruised and swollen parts. These witnesses also concurred substantially with Mrs. Champ in her statement of the declarations made by the accused at the time, to the effect that Mrs. Champ was crazy.

Numerous witnesses, and among them a sister and other female relatives of Mrs. Champ, proved that they were well acquainted with her, and that she had never been afflicted with hysteria, or with delusions of the mind, or with any disease of the female organs; but that, on the contrary, she had enjoyed uniform good health, both of mind and body.

No attempt was made upon the trial to assail the character or veracity of Mrs. Champ. So far as the record shows, it seems to have been conceded there, as it was in argument here that her character was in all respects unimpeachable, and that she at least believed that her own precise, consistent, and apparently impartial history of the transaction, was true. The theory of the defense relied upon was, that she was laboring under a sudden attack of hysteria, or of some mental delusion, the result of a diseased condition of the genital organs. For the purpose of establishing that defense, several physicians were called on for professional opinions, the exclusion of some of which by the circuit court forms the chief ground of complaint here.

The point first to be considered, however, relates to a question of practice arising upon the construction of section 660 of the Civil Code of Practice, which is made applicable to criminal cases. The section is as follows:

"The party producing a witness is not allowed to impeach his credit by evidence of bad character, unless it is a case in which it was indispensable that the party should produce him; but he may contradict him by other evidence, and by showing that he has made statements different from his present testimony."

It is insisted that the circuit court erred in refusing to allow the prisoner to prove, by Webster and Martin, that Thomas Brand, on the day of the alleged rape, made statements to each of them variant from his testimony on the trial.

Thomas Brand is the person referred to in the testimony of Mrs. Champ as her nephew. On the examining trial he was called as a witness on the part of the Commonwealth; but the attorney for the Commonwealth declined introducing him on the trial in the circuit court. He was introduced by the prisoner as a witness, and detailed the conversation he had with Champ immediately after the occurrence, in which Champ told witness that his aunt was crazy; that she had accused him of putting a vial to her nose; that she had a fit and fell on the floor. He stated that his aunt had him up only once the night before, and that he and she went up to the attic and found the plank knocked off the sugar barrel, which had caused the noise. He said he did not tell Champ that his aunt had him up more than once that night; nor did he tell Champ his aunt was crazy; nor did he tell Martin or Webster, at Millersburg, that his aunt had him up two or three times the night before, because she thought there were men in the house; nor did he say to them that he thought she was crazy, or that her conduct was strange, or anything of that sort. All these statements appear from the record to have been made by the witness, on the interrogation of the prisoner.

The prisoner then offered to prove by Martin and Webster that they heard Brand state in Millersburg, on the day of Champ's arrest, that his aunt had had him up two or three times the night before, she being of the impression that there were men in the house; and that Brand then said...