Malone v. Commonwealth

• Decision Date: 07 March 1891
• Citation: 91 Ky. 307,15 S.W. 856
• Parties: MALONE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

15 S.W. 856

91 Ky. 307

MALONE v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 7, 1891

Appeal from circuit court, Jefferson county.

M. A Walker, for appellant.

P. W Hardin, for the Commonwealth.

HOLT C.J.

This is a conviction under section 9, art. 4, c. 29, Gen. St "Whoever shall unlawfully take or detain any woman against her will, with intent to marry such woman, or have her married to another, or with intent to have carnal knowledge with her himself, or that another shall have such knowledge, shall be confined in the penitentiary not less than two nor more than seven years." The evidence shows that the appellant, John Malone, between 7 and 8 o'clock at night, stealthily went into the room where Annie Divine, a girl between 13 and 14 years of age, was sleeping, and without waking her removed the bed-clothes from over her pulled up her clothes, and kissed her naked person, his pants being unbutioned, and his person exposed. There was a light burning in the room, and just at this time he was detected and taken away. He does not, in testifying as a witness, deny the acts named; but, being in the habit of staying at the house occasionally, he says, owing to his being somewhat intoxicated, he concluded he would go upstairs and go to sleep, and that he did not know the girl was in the room. It is contended upon this state of facts that the appellant is only liable for an assault, and that his case does not fall within the statute under which he has been indicted. His counsel, therefore, at the close of the testimony for the prosecution asked the court to peremptorily direct an acquittal. This was denied. The object of the legislature in enacting this statute was to create a less offense than that of rape, or an attempt to rape, but to hold one who should be guilty of the conduct named in it liable for felony; and to do so the taking or detention must be against the will of the woman. It is said there was no taking or detention in this instance within the meaning and purpose of the statute, an that the appellant did nothing against the will of the girl. It is evident his purpose was to have carnal knowledge of her. His conduct and condition of his clothing admit of no other explanation. What he did was not only "a taking" of her, but also "a detention" against her will in law. Undoubtedly, if the female be conscious, or in possession of her will, then such conduct must be shown upon the part...