Elmore v. Commonwealth
| Citation | 282 Ky. 443 |
| Parties | Elmore v. Commonwealth. |
| Decision Date | 22 March 1940 |
| Court | United States State Supreme Court — District of Kentucky |
2. Criminal Law. — In rape prosecution, admission of testimony as to footprints, containing distinguishing marks indicating that they were made by shoes similar to ones worn by defendant, which were observed in vicinity of alleged crime, a few hours after crime was committed, was proper in absence of evidence indicating that other persons had left tracks in vicinity of crime or that conditions had changed between time of commission of crime and time of examination of footprints.
3. Criminal Law. — The constitutional provision against self-incrimination constitutes a limitation as to testimonial compulsion directed against the defendant as a witness, and hence the taking of defendant's shoes to compare them with footprints found at scene of crime did not violate constitutional provision against "self-incrimination," since evidence of officers who made comparison was evidence in itself unaided by any statement or act of defendant (Constitution, sec. 11).
4. Criminal Law. — In rape prosecution, admission of defendant's statement made to police officers that while he and his brother were driving turkeys they were in hollow where crime was committed, was not error as having been obtained in violation of Sweating Act, since such statement did not constitute a "confession," defendant denied his guilt, and evidence established that answers made by defendant to questions asked him were made freely and voluntarily (Ky. Stats., sec. 1649b-1).
5. Criminal Law. — The Sweating Act is intended to exclude only convictions obtained through the application of improper means amounting to duress or putting in fear or the offering of inducements (Ky. Stats., sec. 1649b-1).
6. Criminal Law. — In prosecution for rape of a 14 year old girl, refusal to give an instruction under the statute prescribing penalty for having carnal knowledge of a child between age of 12 and 16 with her consent was proper, in absence of evidence establishing consent (Ky. Stats., sec. 1155 (2)).
7. Searches and Seizures. — The right guaranteed by the Constitution to be secure against unreasonable searches and seizures is a personal right and is broad enough to cover search of a house in which a minor defendant resided with his father and mother, since the house was minor's dwelling as well as the dwelling of his father and mother (Constitution of Kentucky, sec. 10; U.S.C. A. Constitution, Amendment 4).
8. Searches and Seizures. — Where search, without a search warrant, of a house in which a minor resided with his parents was not made at time of minor's arrest and as an incident thereto but was made hours thereafter and on a later visit to minor's home by officers, legality of search must be determined as in ordinary case of a search of a dwelling house without a search warrant (Constitution of Kentucky, sec. 10; U.S.C.A. Constitution, Amendment 4).
9. Infants. — The law throws every reasonable protection about an infant accused of a crime and resolves every doubt in his favor.
10. Criminal Law; Searches and Seizures. — The search, without a search warrant, of a dwelling house, with permission of mother of a colored minor, accused of rape, which search was made hours after minor's arrest, constituted an "unlawful search and seizure" within meaning of constitutional provisions and admission in rape prosecution of evidence found as result of such search, constituted reversible error, since under the implied coercion presented by the evidence, attempted waiver by mother of minor of his immunity from search of his dwelling without a search warrant was ineffective (Constitution of Kentucky, sec. 10; U.S.C.A. Constitution, Amendment 4).
Appeal from Garrard Circuit Court.
W.H.W. Reynolds and Charles J. Walker for appellant.
Hubert Meredith, Attorney General, and W. Owen Keller, Assistant Attorney General, for appellee.
Before K.S. Alcorn, Judge.
Reversing.
The appellant, Owen Elmore, a negro boy 17 years of age, was convicted of the rape of Margaret Coyle, a white girl 14 years of age, and the verdict of the jury fixed his punishment at death. From the judgment entered on that verdict this appeal is prosecuted.
The appellant and the prosecuting witness are children of tenant families and have resided for more than three years on adjoining farms, the houses being about 1/2 mile distant. About 9 o'clock on the morning of April 12, 1939, Margaret, accompanied by a white girl and a sister of appellant, went to the mail boxes on the rural route about 1/2 mile east of the appellant's home. After the mail arrived appellant started to his home by the usual road. Margaret, together with her white girl companion and appellant's sister, left the mail boxes and went to the residence of a neighbor from which she started home alone. Her home is west of the appellant's home and she traveled through a field near his home on regular trips to and from the mail box. After leaving the neighbor's house and starting home she saw the appellant standing with one foot on a fence near his home. At this time she says the appellant was shooting a sling shot and watched her as she walked down the road She went on through a field towards her home and saw appellant start towards his home. She testifies that about half-way between her home and appellant's home she crossed a creek and entered a road-way that follows the creek for some distance and then turns towards her home and that after she had crossed the creek and traveled this road for a few yards she was overtaken by the appellant who threw her to the ground and raped her by force. She states that appellant put his finger down her throat to keep her from hollering and in doing so scratched her face; that she hollered as loud as she could but no one heard her and came to her rescue. After appellant accomplished his purpose, she states, he told her she had better not tell it but she told him she would tell it if she lived. She went immediately to her home and told her mother what had happened, whereupon her mother sent for her father who was out at work. On the arrival of the father he immediately took Margaret to the county seat and had her examined by a physician, Dr. J.E. Edwards. The testimony of this physician shows beyond a doubt that some one had had sexual intercourse with the girl shortly prior to his examination. On completion of this examination a warrant was taken out and appears to have been issued for an older brother of appellant. The record is not very clear as to what happened in this connection but at any rate the sheriff, armed with this warrant, arrested and brought in two older brothers of appellant. Apparently, on being confronted with the older brothers, Margaret did not identify either of them as being the guilty party and the sheriff thereupon went back to appellant's home and arrested him and brought him to town. Dr. Edwards, in testifying as to Margaret's conversation with him at the time of his examination, says that she told him about seeing the appellant standing with his foot on the fence at the time mentioned above and he asked her if the boy that raped her was the one she saw at the fence and "she said he looked like him and about the size of him but his clothing looked a little different, some difference about his clothing, she was not sure, the boy was about the size of the boy she saw on the fence, something different about the clothing." The following question was then asked him:
On the trial Margaret identified appellant positively as the one who committed the assault on her and when asked how she identified him stated "by the scar over his right eye." Evidence was introduced by appellant tending to show that his older brother, who had been arrested and who was dead at the time of the trial, had a scar over his right eye also.
After appellant's arrest his shoes were taken from him and were compared with tracks in the mud at the point where he was standing with his foot on the fence and also at the place where Margaret says she was assaulted. These shoes had toe and heel plates on them and a patch on the sole of one of them. Margaret pointed out to officers the place in which she says she was assaulted and these officers testify that tracks found in the vicinity of the place pointed out by her compared with the shoes worn by appellant and exhibited the peculiar markings of the patch on the shoe sole.
The appellant denies the assault and states that when he left the point where he was standing with his foot on the fence, as testified to by Margaret, he went directly to his home and was immediately sent by his mother, in company with his brother, to drive in some turkeys and did not see Margaret any more that morning and was not even in the hollow at the point where she says she was assaulted. He is supported in this testimony by his mother, brother and sister. After appellant's arrest he was questioned by officers who stated that he flatly denied the crime but stated that while driving the turkeys he was in the hollow in which the crime is alleged to have taken place.
Some hours after appellant's arrest the sheriff, county attorney, a deputy sheriff and others went to appellant's home and notified his mother that they desired to search the house. They testify that she willingly gave them permission to do so. This is not disputed by the mother, who testified on the trial. On this search a pair of overalls, wet from the knees down and having damp mud on the knees and a sling shot in the pocket, were found in appellant's room. These overalls were introduced in evidence on the trial and, as may readily be seen, probably played a potent part in securing a conviction.
It will be seen from the...
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