McPerkin v. Commonwealth
| Decision Date | 16 January 1930 |
| Citation | 236 Ky. 528 |
| Parties | McPerkin v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
2. Criminal Law. — Right of appeal in criminal case is matter of grace which state can extend or withhold as it may deem fit.
3. Criminal Law. — Decision of trial court on motion to quash indictment held not reviewable on appeal (Criminal Code of Practice, sec. 281).
Criminal Code of Practice, sec. 281, provides that the decisions of the court on challenges to the panel and for cause or on motion to set aside an indictment shall not be subject to exceptions.
4. Criminal Law. — Defendant, on appeal from conviction, not having made effort to elucidate contention relied on for reversal, not clear to court, contention was waived.
5. Jury. — Trial by jury in prosecution for rape, a felony case, is constitutional right which cannot be waived.
6. Criminal Law. — That prosecutrix in rape case was subject to hallucinations during crime, held not to warrant disregard of her testimony, but its weight was for jury.
Prosecuting witness testified, on cross-examination, to effect that God whispered in her ear during progress of the crime; that she received a communication from God when she first asked Him to help her; that she had in some way been getting warnings or whisperings since she was a child; and that she did not know who whispered these things to her, unless it were the angels.
7. Criminal Law. — Credit to be given prosecuting witness in rape prosecution, after testifying she was victim of hallucination during progress of crime, held for jury.
8. Criminal Law. — In prosecution for rape and detaining woman, instruction on offenses held not erroneous.
Instruction, in addition to instructions on rape and on detaining a woman against her will, authorized jury to find him not guilty, if jury entertained reasonable doubt of his having been proven guilty, or to find him guilty of detaining a woman, if they believed him guilty, but entertained a doubt as to the offense of which he is guilty.
9. Rape. — In prosecution for rape, husband's testimony regarding scratches, bruises, and blood on legs of prosecuting witness after commission of offense held competent (Civil Code of Practice, secs. 605, 606).
Appeal from Kenton Circuit Court.
MARTIN BROWN for appellant.
J.W. CAMMACK, Attorney General, and ULIE J. HOWARD for appellee.
Anderson McPerkin appeals from a judgment entered upon a conviction of rape, by which the sheriff of Kenton county is directed to hang him by the neck until he is dead.
This crime is alleged to have been committed in Crescent Springs, a village on the Southern Railway in Kenton county, Ky., and the time of its commission is fixed at approximately 3:30 p.m. Thursday, March 6, 1930. The severity of the defendant's sentence is our excuse for reviewing the evidence with some meticulosity. We shall endeavor to avoid mentioning names of the female witnesses as far as possible. We shall begin our statement of the evidence with the testimony of the neighbors.
The first neighbor who testified was a lady who had been to the grocery, and about 3:00 or 3:30 p.m., as she returned, she noticed the defendant walking on the railroad track ahead of her. He stopped and lay down on the side of the railroad property, she had to pass him, she watched him, and, when she got home and had put down her purchases, she looked out and saw him approaching the home of the woman whom he made his victim. She identified the defendant as the man she had seen approaching this home. She kept watching, and he did not come out. Soon the victim's daughter, who had also gone to a grocery, returned, and this neighbor saw her enter the house and soon run out again screaming. This neighbor ran over there and stayed until after the defendant had been arrested and brought back, and she then identified him as the man she had seen.
Another neighbor lady testified she saw the first one as she walked along the railway behind the defendant. She saw the defendant lie down, and, after the first neighbor had passed him, this second neighbor lady saw the defendant start toward the home of his victim, but her view was soon cut off by a building. She watched to see if he would come back, he did not, and soon the victim's daughter ran screaming from the house, and this neighbor went over there; soon the defendant was arrested and brought back there. The witness testified the man brought back was the man she had seen enter the house and is the defendant.
The next witness was John Beil, Sr., who was on Walnut street, delivering papers, and saw a man come running from the direction of the home of the victim of this crime. When that man saw Beil, he stopped running, and continued walking fast toward the railroad bridge. He said this man was the defendant, and he pointed out the way he had gone to Andy Mallapelli and Kinney Niemeyer, the men who made the arrest.
The next witness was a lady who was visiting her mother on Walnut street on this afternoon, and she saw a colored man running past there toward the railroad bridge. She said he would run a little way, then look back, then run again, and look back.
The fourth neighbor woman who testified identified the defendant as a man she saw coming rapidly from the direction of the home of the victim of this crime on the day of its commission. The fifth neighbor lady merely testified that about the time of this crime she saw a colored man running from the direction of where it was committed toward the bridge. The next witness was Walter Hageman, and he testified he saw the defendant running along the railroad track, saw Niemeyer and Mallapelli after him, and at their request he helped them stop and arrest him. He testified it was about a twelve-minute walk from where this crime occurred to where the defendant was arrested.
The next witness was T.P. Cappell, a railroad section foreman, who was walking the railroad track and saw the defendant running from the home of his victim across the adjoining lot in the direction of the bridge where later he was arrested. He identified the defendant as the man he saw.
The next witness was Andy Mallapelli, a man employed by Charles Niemeyer, an ice dealer. He saw the daughter of the victim run out of the house screaming for help. He saw the defendant running, and he, Niemeyer, and Hageman commandeered an automobile, pursued him, overtook him, arrested him, and brought him back. The evidence of Niemeyer is practically the same. The pursuit and arrest of the defendant were probably completed within 10 minutes after the crime was committed, but the witnesses give various estimates of the time.
We will not go into the sordid details of the crime itself. The victim, a woman 36 years of age, was lying on the bed with her face to the wall. Something caused her to look around and she saw the defendant, who, telling her not to holler or he would kill her, proceeded to accomplish his purpose, and had done so when the victim's daughter returned from the grocery and came upon the defendant flagrante delicto. We shall simply mention the marks and bruises on the victim, which were described by women who soon gathered in. Both the victim and her daughter positively identified the defendant that day when he was arrested, and also at the time of the trial. So did other witnesses. The defendant admits he was at the house, but says he only asked for something to eat; the door was slammed in his face, and he went quietly away. He said the next place he stopped was a section house, and he called as a witness a Miss...
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