Moseley v. Commonwealth
| Decision Date | 12 December 1924 |
| Citation | 206 Ky. 173 |
| Parties | Moseley v. Commonwealth. |
| Court | Kentucky Court of Appeals |
Appeal from Carter Circuit Court.
WAUGH & HOWERTON for appellant.
FRANK E. DAUGHERTY Attorney General, and MOORMAN DITTO, Assistant Attorney General for appellee.
Appellant Moseley, a resident of Texas, was indicted and convicted in the Carter circuit court of the crime of rape and his punishment fixed at a term of seventeen (17) years in the penitentiary. He is a man past middle age, and had been in Carter county only about twenty-four (24) hours at the time of the occurrence of the things which brought about his conviction. He was working with a carnival or show, and his wife accompanied him. The prosecuting witness is a little girl about thirteen (13) years of age. She and other witnesses testified that appellant took the child up on a hill not far from the town early one morning, put himself in the attitude to and attempted intercourse with her. A physician who made a physical examination of the girl shortly after the occurrence testified that her private parts were bruised and discolored but that he could not tell whether there had been penetration or not, although he was sure she had not had intercourse. It was his belief that there had been slight penetration.
The girl testified she was frightened and did not know whether there had been penetration or not. This was the substance of all the evidence upon the subject of penetration.
The employer of appellant testified that he had sent a ticket to appellant to bring him from his home in Texas to Olive Hill to work for him in a show and that he had just arrived a short time before the time stated by the prosecutrix; that appellant was loading the equipment and paraphernalia of the show on the train preparatory to shipment to another town and that he had been working at it several hours during Saturday night; that he appeared to be under the influence of intoxicating liquors, or at least there was something strange about him. This was the night before. After the arrest of appellant, and he had been struck on the head with rocks and other hard substances, he appeared to be in a semiconscious condition; and after he was placed in jail muttered and talked in a strange way, lying on his back looking at the ceiling, and had no conversation with anyone and paid no attention to questions asked him.
The rape is charged to have happened on the 6th of the month and he was indicted on the 8th while he was in jail at Catlettsburg, but this indictment was quashed and a new indictment returned on the 14th. On July 15th he was placed on trial.
Appellant complains of several alleged errors but we think it will be sufficient for the purpose of this opinion to consider only the instruction given by the court to the jury. In criminal cases it is the duty of the court to give the whole law applicable to the facts. Tucker v. Commonwealth, 145 Ky. 84; Gordon v. Commonwealth, 136 Ky. 508.
Only two instructions were given — one upon rape and the other upon reasonable doubt. The evidence...
To continue reading
Request your trial