Grigsby v. Commonwealth

• Decision Date: 20 April 1945
• Citation: 187 S.W.2d 259,299 Ky. 721
• Parties: GRIGSBY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

187 S.W.2d 259

299 Ky. 721

GRIGSBY
v.
COMMONWEALTH.

Court of Appeals of Kentucky

April 20, 1945

Appeal from Circuit Court, Perry County; Roy Helm, Judge.

Amos Grigsby was convicted of rape, and he appeals.

Reversed. [187 S.W.2d 261]

[299 Ky. 723] Napier & Napier, of Hazard, for appellant.

Eldon S. Dummit, Atty. Gen., and H. K. Spear, Asst. Atty. Gen., for appellee.

STANLEY, Commissioner.

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.

[299 Ky. 724] 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...