Keene v. Com.

• Decision Date: 30 April 1948
• Citation: 307 Ky. 308,210 S.W.2d 926
• Parties: KEENE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

210 S.W.2d 926

307 Ky. 308

KEENE v. COMMONWEALTH.

Court of Appeals of Kentucky

April 30, 1948

Appeal from Circuit Court, Campbell County; Ray L. Murphy, Judge.

Thomas Keene was convicted of rape, and he appeals.

Judgment reversed.

Davies & Hirschfeld and Louis E. Arnold, all of Newport, for appellant.

A. E Funk, Atty. Gen., and William J. Wise, of Newport, for appellee.

STANLEY Commissioner.

The appeal is from a conviction of rape, with imprisonment of fifteen years imposed.

The victim was brutally assaulted, placed in an automobile in the village of Cold Springs and taken some distance into the country where she was ravished. Of that there is no doubt. The defendant, Thomas Keene, was a stranger to her, but circumstances caused the police officers to place him under suspicion and inquiry. Two days afterward he voluntarily accompanied the officers to the home of a neighbor of the prosecuting witness and she identified the accused as the perpetrator of the crime. For some unexplained reason she was later taken to the jail and again identified him. On neither occasion was he placed with a group of men to be picked out by her. She positively identified the defendant during the course of the trial. There is circumstantial evidence tending to corroborate her testimony. On the other side, the defendant denied the accusation, stood up well under a vigorous cross-examination and presented circumstantial evidence tending to sustain his plea of innocence. It seems sufficient to say that we have carefully considered the entire record and are of opinion that the question of guilt was one for the jury.

Argument is made as to the competency of testimony as to the extra-judicial identification of the accused by the prosecuting witness on the two occasions mentioned. The authorities are not in accord as to the competency of such evidence where the identity of the accused person is in dispute. 20 Am.Jur., Evidence, Sec. 353. We have held in a homicide case that such evidence is incompetent, although an accusation made in the presence and hearing of the person accused concerning a matter within his knowledge, and his response and actions, are admissible if the conditions and the accusation would seem to require a response, particularly if it constitutes an actual or tacit incriminatory admission. Griffith v. Commonwealth, 250 Ky. 506, 63 S.W.2d 594. However, in the course of that opinion we noted that perhaps in a certain class of circumstances in rape cases extra-judicial identification may be competent as original evidence in a subsequent trial, citing the annotation in 41 L.R.A.,N.S., 949. In the present case, most, if not all, of the admitted testimony as to the witness' statements and identification on the two occasions seem to have been within his presence and hearing. We do not pass upon any particular statement. On another trial the court will be on guard not to admit anything that could be regarded outside the rule of admissibility laid down in the Griffith case. In addition to the authorities cited therein, reference may be made to White v. Commonwealth, 292 Ky. 416, 166 S.W.2d 873; Lett v. Commonwealth, 284 Ky. 267, 144 S.W.2d 505.

The court had refused to permit another young woman, Mrs. Marion Houben, to testify that she had been accosted on a street of Fort Thomas and struck by the defendant about midnight of January 23rd, six days before this crime with which he was charged was committed. Her assailant had run when she screamed and the light on a nearby porch was turned on. Her testimony was given in chambers and appears in the record as an avowal. The court had sustained the defendant's objection to it. In the course of the defendant's examination his attorney had asked, as a concluding comprehensive question, 'Did you on that night or any other time either assault, beat or rape Dorothy Scott or any other person at any time or place?' He answered: 'No, I didn't.' This was seized upon by the Commonwealth's Attorney to ask him on cross-examination if he had not in fact beaten another person on another occasion, and he answered that he had not. Then he was asked specifically about the incident which Mrs. Houben had related without the hearing of the jury. He denied that. The court overruled the defendant's objection and admonished the jury that this evidence could be considered only for the purpose of affecting the credibility of the defendant as a witness. As a matter of fact, there was no evidence before the jury, but only the implications of the interrogation and the defendant's denials.

The defendant had related under cross-examination and over objection that while he was in the Cincinnati police station after his arrest on this charge, he had been brought out and put under bright lights in the presence of some women. Then the Commonwealth called Mrs. Houben to the witness stand in rebuttal. Over objections, she related in detail the occurrences of her assault and identified the defendant as the man who had assaulted her. There was considerable colloquy between the court and the attorneys concerning this interrogation. The court finally admonished the jury not to consider the statements of the lawyers since they were not evidence. He merely announced that the purpose of the rebuttal had been met and gave no admonition concerning the testimony or its purpose.

The Commonwealth's Attorney then asked Mrs. Houben whether she had seen the defendant in jail at Cincinnati after January 23rd (the day she was assaulted). After a colloquy in which statements were made by counsel that should have been omitted, the court said that his memory was the defendant had testified he could not tell who the women were that had been brought there. Then the question was withdrawn.

We regard all the above as unfair and prejudicial to the substantial rights of the defendant. It is a fundamental principle of English and American jurisprudence that a citizen shall be tried for one offense at a time. Therefore evidence which shows or tends to show that the defendant is guilty of the commission of other crimes or offenses at other times, even though they are of the same nature, is not admissible for the purpose of showing the commission of the particular crime charged unless the other offenses are connected with it. Certain exceptions to that rule of exclusion and a wider latitude is allowed upon questions of identification where that is the sole issue. Jenkins v. Commonwealth, 167 Ky. 544, 180 S.W. 961, 3 A.L.R. 1522. But a mere similarity of the other offenses does not afford a fair or logical exception, hence proof of them is not permitted. Jones v. Commonwealth, 303 Ky. 666, 198 S.W.2d 969.

Similar assaults on third persons cannot be shown unless some connection between the offenses is established. 22 C.J.S., Criminal Law, § 691, page 1169; Wharton's Criminal Evidence, Sec. 348, 350, 356. In Cargill v. Commonwealth, 13 S.W. 916, 12 Ky.Law Rep., 149, a prosecution for detaining a woman against her will, it was held error to allow the prosecuting witness to detail the defendant's sexual offenses with other women in response to questions by the attorney for the state.

In State v. Greco, 7 Boyce, Del., 140, 104 A. 637, the defendant was being tried upon the charge of assault with intent to rape. The prosecuting witness related that while she was walking along the street the defendant had come up behind her, put his hand across her mouth with a sponge, which tasted and smelled sweet; that a struggle followed which was terminated by the approach of passersby. Without the hearing of the jury the court heard testimony of another woman that the defendant had committed upon her a similar assault four days before and eight squares from the place where the assault for which he was being tried was committed. The court held that this testimony was not competent to establish intent, for the nature of the offense charged necessarily establishes criminal intent. Nor was it admissible to prove identity, for that kind of testimony must establish a system or plan and there was nothing disclosed in the offered evidence of any connection between the two offenses beyond that of proximity as to the time of their commission (three days) and similarity of means employed.

In the case at bar, the trial court properly excluded the testimony when first offered. To avoid any...