Fenston v. The Commonwealth

• Decision Date: 01 June 1885
• Citation: 82 Ky. 549
• Parties: Fenston v. The Commonwealth.
• Court: Kentucky Court of Appeals

82 Ky. 549

Fenston v. The Commonwealth.

Court of Appeals of Kentucky.

June, 1885.

APPEAL FROM NELSON CIRCUIT COURT.

J. C. WICKLIFFE FOR APPELLANT.

P. W. HARDIN, ATTORNEY GENERAL, FOR APPELLEE.

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT.

Appellant was indicted for the offense of rape upon a female under the age of twelve years, described in section 3, article 4, chapter 29, General Statutes, and convicted of the offense of carnally knowing her, as described in section 6.

During the trial a letter written by him was read in evidence, tending to show that he had carnal knowledge of her by her consent. And one ground relied on for reversal is that only part of the letter was read to the jury. But as it does not appear what the omitted portion contained, nor that appellant required it to be read, as he might have done, he is not entitled to a reversal on that ground.

At the conclusion of the evidence, the court gave the following instruction, which evidently controlled the jury in their verdict:

"If the jury believe from the evidence, beyond a reasonable doubt, that the defendant, Frank Fenston, * * carnally knew Suvena South, a female, and at the time of said carnal knowledge she was under the age of twelve years, they will find the defendant guilty and fix his punishment at confinement in the penitentiary at not less than ten nor more than twenty years."

It is contended for appellant that the court erred in giving that instruction, because he can not be legally convicted of the offense therein mentioned, under the indictment found against him.

To determine this question, it is necessary to refer to the General Statutes, and also the Criminal Code.

The following sections of article 4, chapter 29, General Statutes, are applicable:

"§ 3. Whoever shall be guilty of the crime of rape upon the body of an infant under twelve years of age shall be punished with death, or with confinement in the penitentiary for life, in the discretion of the jury.

"§ 4. Whoever shall attempt to commit a rape upon the body of an infant under twelve years of age shall be confined in the penitentiary not less than five nor more than twenty years.

"§ 5. Whoever shall unlawfully carnally know a female of and above twelve years of age, against her will or consent, or by force, or while she is insensible, shall be guilty of rape, and punished by confinement in the penitentiary not less than ten nor more than twenty years, or by death, in the discretion of the jury.

"§ 6. Whoever shall carnally know a female under twelve years of age, or an idiot, shall be confined in the penitentiary not less than ten nor more than twenty years."

It will be perceived that the only offense mentioned in the sections quoted which can be committed against a female of and above the age of twelve years is rape, as defined in section 5.

But there are three distinct offenses mentioned, each made a felony, which can be committed against one under that age:

First. Rape at common law, described in section 3, for which appellant was indicted.

Second. An attempt to commit rape, denounced in section 4.

Third. Carnal knowledge, described in section 6, being the offense of which he was found guilty, and which may be committed as well against an idiot female as one under the age of twelve years.

There is another difference in the provisions of article 4, as applied to the two classes. While the statutory offense of rape, described in section 5, may be committed against a female of and above twelve years of age without actual force, it can not be done by her will or consent. But the offense of carnal knowledge of a female under the age of twelve years, or an idiot, is made a felony, whether had with or without her consent.

The reason for the difference is obvious. A female under that age is presumed to be, as an idiot in fact is, without capacity and discretion to comprehend fully the consequences of yielding...