Grigsby v. Commonwealth

• Decision Date: 20 April 1945
• Parties: Grigsby v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

299 Ky. 721

Grigsby v. Commonwealth.

Court of Appeals of Kentucky.

April 20, 1945.

1. Criminal Law. — If instruction submitting commonwealth's theory is couched in such language as the ordinary layman who sits upon jury can easily understand, and its negative completely and adequately covers the defense of accused, affirmative instruction on defendant's theory is unnecessary.

2. Criminal Law. — Where defendant proves facts to excuse act which otherwise would of itself be a crime, or the specific issue is criminal intent, such as accident, self-defense or mental capacity, affirmative instruction should ordinarily be given.

3. Criminal Law. — Affirmative defense instruction need not be given where issue is a culpable overt act forming a constituent part of crime.

4. Rape. — Where defendant in rape prosecution testified that prosecutrix yielded in consideration of promise to pay her, specific instruction to find defendant not guilty if they believed that prosecutrix had agreed to intercourse for a consideration was unnecessary.

5. Witnesses. — Defendant is not subject to a different rule of cross-examination from that applicable to other witnesses, but must submit to searching cross-examination upon subjects or phases thereof introduced in direct examination if they raise an inference unfavorable to the prosecution, or to examination upon incidental or collateral and apparently irrelevant matters calculated to test credibility and weight of his testimony.

6. Criminal Law. — Defendant is subject to examination concerning his movements or conduct prior to commission of the crime charged, his residence, associates, business or employment, and in some instances concerning immoral conduct in his past life.

7. Criminal Law. — If defendant stated he had never been in trouble before, commonwealth may inquire as to any specific involvement.

8. Criminal Law. — That accused becomes a witness in his own behalf does not waive right to object to procuring incompetent or inadmissible evidence from him on cross-examination. Const. Ky. sec. 11; U.S.C.A. Const. Amend. 5.

9. Criminal Law. — Under bills of rights conferring privilege of immunity, proof or extracting admission of anything reflecting infamy upon defendant not pertinent to the particular case, or any offense other than that charged, with certain exceptions, is prohibited. Const. Ky. sec. 11; U.S.C.A. Const. Amend. 5.

10. Witnesses. — The statute permitting witnesses to be impeached by evidence of conviction of felony does not permit commonwealth to require accused to admit, or otherwise to prove, that he has been merely charged with some particular crime or has been convicted of or is guilty of misdemeanor. Civil Code of Practice, sec. 597.

11. Criminal Law; Witnesses. — Where defendant in rape prosecution wore soldier's uniform at trial, cross-examination whereby defendant was compelled to admit that he was a deserter, though never convicted of desertion, was prejudicial error though commonwealth could have exposed defendant if he had worn uniform without right. Civil Code of Practice, sec. 597.

12. Criminal Law. — Argument of commonwealth's attorney, based upon improper cross-examination of defendant, who had worn soldier's uniform at trial, showing that defendant was a deserter, was erroneous.

13. Rape. — In rape prosecution, evidence that prosecutrix had lived in adultery while her husband was confined in penitentiary at some undisclosed period was incompetent because of apparent remoteness, though evidence of immorality occurring shortly before the alleged rape is competent.

14. Rape. — In rape prosecution, evidence of voluntary sexual relations between prosecutrix and defendant prior to the occasion charged, and testimony that prosecutrix had a bad reputation in her community for chastity, is competent as circumstantial corroborative evidence on issue of consent or as bearing upon question of its probability.

15. Criminal Law. — In rape prosecution, evidence of good character is competent in rebuttal of testimony of voluntary sexual relations between prosecutrix and defendant, or of bad reputation.

16. Criminal Law. — In rape prosecution, court should admonish jury as to purpose of admitting testimony concerning voluntary sexual relations between prosecutrix and defendant and concerning reputation and character of prosecutrix.

Appeal from Perry Circuit Court.

Napier & Napier for appellant.

Eldon S. Dummit, Attorney General, and H.K. Spear, Assistant Attorney General, for appellee.

Before Roy Helm, Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Reversing.

Amos Grigsby appeals from a judgment sentencing him to imprisonment for life for the crime of rape.

We find no merit in the appellant's contention that he should have been acquitted by a peremptory instruction. It is sufficient to say that the prosecutrix testified the defendant had forced her into submission by drawing a large knife and threatening her life, and that he testified she had yielded in consideration of a promise to pay her and when he did not, she wrongfully charged him. There is substantial evidence corroborating the prosecutrix.

The jury were instructed in the usual form that they should find the defendant guilty if they believed from the evidence beyond a reasonable doubt that he "did unlawfully and feloniously have carnal knowledge of Alma Grigsby by force and against her will", and fix his punishment at death or at confinement in the state reformatory for life without parole or at confinement for life or for a term of not less than ten nor more than twenty years, in their discretion. It will be observed that the several penalties are as authorized by a 1944 amendment to the statute, KRS 435.090, Ch. 143, Acts of 1944. An instruction was given to find the defendant not guilty if upon the whole case the jury should have a reasonable doubt of the defendant having been proved guilty.

The appellant argues that it was the duty of the court to instruct the jury specifically to find him not guilty if they believed from the evidence that the prosecutrix had agreed to the act of intercourse for a consideration. This, he contends, is because he admitted the act but denied an essential element of the offense charged, namely, the compulsion, without which there was no crime. This is equivalent to the civil law plea of confession and avoidance. The premise of the appellant's argument is in accord with a general rule. Evitts v. Commonwealth, 257 Ky. 586, 78 S.W. 2d 798. On the other hand, we have laid down the rule that "if the instruction which submits the commonwealth's theory of the case is couched in such language as the ordinary layman, who sits upon the jury, can easily and readily understand and comprehend, and its negative completely and adequately cover the defense of the accused, it is unnecessary to give an affirmative instruction on the theory of the defendant." Duvall v. Commonwealth, 225 Ky. 827, 10 S.W. 2d 279, 281.

We have frequently alluded to the difficulty of applying these respective rules. It may be said that where the defendant proves facts or circumstances to excuse his act which otherwise would in and of itself be a crime, or the specific issue is one of criminal intent, such as where there is a claim of accident, self-defense, or mental capacity, ordinarily an affirmative instruction should be given. Cf. Duvall v. Commonwealth, supra; Morgan v. Commonwealth, 242 Ky. 116, 45 S.W. 2d 850; Luttrell v. Commonwealth, 250 Ky. 334, 63 S.W. 2d 292. But where the issue is as to a culpable overt act forming a constituent part of the crime, an affirmative defense instruction need not be given. Gibson v. Commonwealth, 204 Ky. 748, 265 S.W. 339. Here the issue was not whether the defendant had a felonious intent, but whether he did in fact use force or fear to accomplish his evil design — whether the admitted act of copulation was committed by consent or by constraint. It is true that in Neace v. Commonwealth, 62 S.W. 733, 23 Ky. Law Rep. 125, we ruled that upon another trial of a rape case an instruction should be given, in place of one which had been given, that the fact the prosecuting witness had a bad reputation as to chastity could not relieve the accused of guilt but there could be no conviction if she had consented to the act and was not constrained by force or fear to submit to it. But in Webb v. Commonwealth, 223 Ky. 424, 3 S.W. 2d 1080, we held upon authority of other cases that it was not a reversible error to fail to give an affirmative instruction with respect to the alleged victim having voluntarily consented because the primary instructions required the jury to believe to the exclusion of a reasonable doubt that the act was committed forcibly and without the consent of the prosecutrix. The opinion of Neace v. Commonwealth, supra, is outside the general stream of the law pertaining to instructions and in conflict with later opinions upon the specific point. In this respect it should not be regarded as controlling, or at least as requiring in every instance that such an instruction be given.

On the trial the defendant wore the uniform of a soldier. Under persistent cross-examination by the Commonwealth's Attorney pro tempore, and over the equally persistent objections of the defendant's attorney, the accused was compelled to admit that he was a deserter from the army. The word itself was used in the interrogation. It was developed that the defendant had overstayed a furlough issued on January 1st previously, and had escaped from the guard house of an army camp on August 1st and come to his home in Perry County where the alleged crime was committed on August 24th. During the course of this examination the defendant maintained, or endeavored to explain, that he was not a deserter because he had never been convicted of desertion, and so was still a soldier in...