Fletcher v. Commonwealth

• Decision Date: 10 October 1933
• Citation: 63 S.W.2d 780,250 Ky. 597
• Parties: FLETCHER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

63 S.W.2d 780

250 Ky. 597

FLETCHER v. COMMONWEALTH.

Court of Appeals of Kentucky

October 10, 1933

Appeal from Circuit Court, Magoffin County.

Joe Fletcher was convicted of rape on a female infant under twelve years of age, and he appeals.

Reversed with directions.

A. H Allen, M. F. Patrick, and D. G. Sublett, all of Salyersville and A. F. Byrd, of Lexington, for appellant.

Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty. Gen., for the Commonwealth.

REES Chief Justice.

The appellant, Joe Fletcher, was indicted for the crime of rape upon a female infant under twelve years of age. The indictment was drawn under section 1152 of the Kentucky Statutes, but the court, under the evidence, properly instructed the jury under section 1155, which reads in part:

"Every male person who shall carnally know, with her consent, any female child, not his wife, under the age of eighteen years, * * * shall be punished as follows:

(1) When such child is under the age of twelve years, by imprisonment in the state penitentiary for not less than twenty years nor more than fifty years, or by death, in the discretion of the jury."

This section defines a crime which is a degree of the crime denounced by section 1152. The accused was convicted and his punishment fixed at confinement in the state penitentiary for a term of twenty years. Upon this appeal, it is insisted that error intervened at the trial, in the introduction of evidence, in failing properly to instruct the jury, in the argument of the commonwealth's attorney, and in that the verdict is not sustained by the evidence.

The appellant is a preacher fifty-six years of age, and has several children, some of whom are married. He resides with his wife and unmarried children in the town of Royalton in Magoffin county. The prosecutrix, Sallie May Hale, at the time of the alleged rape, lived with her parents near appellant's home. A vacant lot fifty feet wide, owned by appellant, separated the two homes. On the rear of appellant's lot was a small barn seven by nine feet in size. The prosecutrix, who was eleven years of age, testified that about 1 o'clock on the day the alleged crime was committed, which was about the middle of August, 1931, she was near appellant's premises, and he called her and asked her to come into the barn; that he took her into one of the stalls in the barn, laid her down on a plank, and had intercourse with her, and then gave her a quarter and told her not to tell any one. Appellant denies that he had any improper relations with the prosecutrix, but admitted giving her a quarter on the day and about the time she claimed the crime took place. He testified that he was standing in his yard and she called him to the gate and asked him for a quarter, saying that she was leaving the next morning with her father and brother for a visit in Greenup county, and wanted some money for the trip. He is corroborated by his daughter and daughter-in-law, who claimed they were present and heard the conversation. They also stated that at no time were appellant and prosecutrix in the barn on that occasion.

The testimony of the prosecuting witness is substantially without corroboration, but it has been held that in rape cases the defendant may be convicted on the testimony of the prosecutrix alone. Druin v. Commonwealth (Ky.) 124 S.W. 856; Boyd v. Commonwealth, 219 Ky. 62, 292 S.W. 478.

Complaint is made because the words "with her consent" were omitted from the instruction given under section 1155 of the...