Neace v. Com.

• Decision Date: 03 May 1901
• Citation: 62 S.W. 733
• Parties: NEACE et al. v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

62 S.W. 733

NEACE et al. v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

May 3, 1901

Appeal from circuit court, Letcher county.

"Not to be officially reported."

William Neace and Andrew Gent were convicted of the crime of rape and they appeal. Reversed.

W. F Hall, for appellants.

Clem J Whittemore and R. J. Breckinridge, for the Commonwealth.

HOBSON J.

Appellants were indicted under section 1154, Ky. St., for the crime of unlawfully having carnal knowledge of Mary Sexton, a female over 12 years of age, against her will and consent and by force. They were found guilty, and their punishment fixed at 10 years in the penitentiary. It is shown by the evidence that two men, about 10 o'clock at night, or a little later, went to the house of Mrs. Mary Gent, at which Mary Sexton was staying that night. After hollowing some time and cursing, demanding the opening of the door, they induced Mrs Gent to open the door. When she did this they jerked her out of the door, and hit her several times with a switch. They then asked for Mary Sexton, and she came out to them. Mrs. Gent went back in the house. Mary Sexton testified that they then compelled her to go up the branch with them a few yards from the house, where they each had carnal knowledge of her, she being afraid they would shoot her if she did not comply with their wishes. She also testified that she recognized appellants. William Neace and Andy Gent, as the parties, although they had on false faces. Mrs. Gent did not identify them, and the testimony identifying them with the offense, outside of the evidence of Mary Sexton, is not very satisfactory or conclusive. On the other hand, they showed that the father of Neace was expected to die that night, and they were sitting up with him at the time, about two miles from Mrs. Gent's. They also proved that on that night and the next morning Mary Sexton identified two other persons as the ones who had committed the outrage, and that she was a woman of very bad character. She stated herself that, while Neace was in the act of carnally knowing her, two men whom she knew passed by a few feet from her; that she recognized their voices, but did not call out to them, because she was afraid. Neace is a son-in-law of Mrs. Gent. Andrew Gent is her son, and only a boy. They came to Mrs. Gent's house early the following morning, after sitting up with the sick man, but Mary Sexton did not then accuse them of having committed the offense, nor did she make this charge until some time afterwards. In the meantime she had been talked to by her husband, who was on bad terms with Neace.

The first, second, and third instructions given by the court to the jury are unobjectionable. The fourth is in these words "The court says to the jury that all the evidence they have heard regarding the virtue and chastity of the witness Mary Sexton goes only in mitigation or aggravation of the crime, and to affect the credibility of the testimony of said witness, and cannot go to a prejudice of the crime." This instruction should not have been given. From the character of the woman, her own testimony as to the occurrence, and her subsequent conduct, the jury might well have inferred that she consented to what was done up the branch. If she consented, and was not made to submit by force or fear, there could be no conviction. There is no doctrine better settled than that there is no rape where the woman consents, and the character of the woman is competent evidence to be considered by the jury...