McIntosh v. Commonwealth

• Decision Date: 21 March 1933
• Citation: 248 Ky. 297,58 S.W.2d 584
• Parties: McINTOSH v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

58 S.W.2d 584

248 Ky. 297

McINTOSH v. COMMONWEALTH.

Court of Appeals of Kentucky

March 21, 1933

Appeal from Circuit Court, Estill County.

Lusby B. McIntosh was convicted of detaining a woman against her will, and he appeals.

Reversed with instructions.

Shumate & Shumate, of Irvine, for appellant.

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

DIETZMAN Chief Justice.

Appellant was convicted of the offense of detaining a woman against her will and sentenced to serve two years in the penitentiary. He appeals.

As grounds for reversal, he contends, first, that the verdict is flagrantly against the evidence; and, secondly, that the court erred in excluding competent evidence offered by him.

As to the first ground, although there was some other evidence introduced than the testimony of the prosecutrix and that of the appellant, the case in its final analysis rested on her word against his word. While there was a good many circumstances proven that rather tended to discredit the story told by the prosecutrix, yet, under well-settled principles, the jury was the judge of her credibility as well as that of the appellant, and, if it chose to believe her story rather than that of the appellant, it cannot be said that under the circumstances the verdict is flagrantly against the evidence.

As to the second ground, the court refused to permit the appellant to elicit from the prosecutrix how long it was after the alleged detention of her by the appellant before she made any complaint of it. Examined out of the presence of the jury she testified that it was at least two weeks before she said anything to her husband about it, and that it was about a month before she made any move in the courts to have appellant arrested. It may not be amiss to say here that the prosecutrix had testified before the jury that, after the alleged detention, she had met the appellant at the church and at the store in which he worked and spoken to him and had been very friendly with him.

It is well settled in cases of rape that the commonwealth may prove by third parties that the outraged woman made complaint soon after the alleged attack upon her. In the case of Meade v. Commonwealth, 214 Ky. 88, 282 S.W. 781, 782, we said:

"Whatever else may be said, it is the universal rule that, in trials for the crime of rape and kindred ones, it is proper to prove the fact of complaint by the prosecutrix, and that is especially so if her statements as to what occurred are controverted by defendant, in which case the fact of complaint is admissible as corroborative of her testimony. 33 Cyc. 1463-1467, both inclusive. The notes to the text show that to the extent indicated there is no dissent by any court from the statement as made above, and we have adopted and applied it in a number of cases, some of which are Douglas v. Commonwealth, 68 S.W. 1107, 24 Ky. Law Rep. 562, Gravitt v. Commonwealth, 212 S.W. 430, 184 Ky. 429, and Kirby v. Commonwealth, 275 S.W. 866, 210 Ky. 353. The text in the volume of Cyc. referred to also says that:

'By the weight of authority the evidence must be confined to the bare fact that complaint was made; the details or particulars of the complaint not being admissible as substantive testimony, unless the statement is part of the res gestae."'

As stated in 52 C.J. 1063: "Such evidence is admitted for the purpose of confirming the testimony of the ravished woman, and not as proof that the crime was in fact committed, or as evidence of the truth of the facts complained of, but merely to rebut the inference of consent that might be drawn from her silence; in fact, it has been stated that such evidence is not received to corroborate the prosecutrix, but rather to support her credibility by meeting any possible inference of self-contradiction in her conduct in the absence of a complaint."

It is also settled that the defendant in such cases may examine the woman on the question whether or not she made any complaint after the alleged attack; it being open to her, if she made no complaint, to explain why she made no complaint. The reason for the admission of such testimony is thus stated in Adams v. Commonwealth, 219 Ky. 711, 294 S.W. 151, 152:

"In a like manner, the failure of Mrs. Young to complain, if she did fail, should be admitted as bearing on the question of consent. 'The virtuous female, who has in fact been thus injured, will not ordinarily omit to make known by her cries the threatened crime; *** will not suffer in silence and without, as soon as practicable, making known this greatest of wrongs to her person.' State v. Cross, 12 Iowa 66, 79 Am.Dec. 519. See, also, People v. Benson, 6 Cal. 221, 65 Am.Dec. 506; Oleson v. State, 11 Neb. 276, 9 N.W. 38, 38 Am.Rep.

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