Payne v. Com.

• Decision Date: 29 April 1908
• Citation: 110 S.W. 311
• Parties: PAYNE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

110 S.W. 311

PAYNE v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 29, 1908

Appeal from Circuit Court, Nelson County.

"Not to be officially reported."

Logan Payne was convicted of an attempt to commit rape, and he appeals. Affirmed.

Geo. S & John A. Fulton, for appellant.

James Breathitt, Atty. Gen., Tom B. McGregor, Asst. Atty. Gen., and N.W. Halstead, for the Commonwealth.

SETTLE J.

Appellant a negro youth 15 years of age, complains that he was illegally convicted in the court below under an indictment charging him with the crime of attempting to commit a rape upon Espy Hall, a white girl under 12 years of age. His punishment was fixed by the jury at confinement in the penitentiary 5 years.

It appears from the evidence that the parents of Espy Hall live about a mile from the city of Bardstown, and near the Bardstown and Shepardsville turnpike, and that Espy, who is 11 years of age, and her sister, Virginia Lee Hall, whose age is 9 years, attend school in Bardstown, to which they walk from their home, traveling the turnpike the greater part of the distance. At a distance of less than half a mile from Bardstown there are two hills in the turnpike and a considerable hollow between them. At this point there is an old unused graveyard, quite a grove of locust trees on one side of the pike, and also a gate opening into a grass field. The topography of the country makes this rather a secluded place by shielding it from the vision of persons approaching the hollow in the pike from either direction until the top of the hill on one side or the other of the hollow is reached. The appellant, Logan Payne, seems to have been employed by several of the residents of Bardstown to daily drive their cows to the pasture adjoining the turnpike entered by the gate in or at the end of the hollow. It further appears from the evidence that on the morning the attempt at rape was claimed to have been committed appellant had turned the cows of which he had charge through the gate into the pasture when Espy and Virginia Lee Hall approached and were about to pass him on their way to school. He then faced them with his pants unbuttoned, and exposed to their view his penis, which he held in his hand, and, shaking it at Espy, asked "if she knew what that was." The little girl told him that she did not, and she and her sister then hurried on their way to school. When appellant first accosted Espy Hall he was not more than 10 or 15 feet from her and was going toward her. When the girls continued on to school he said to Espy "hold on," and asked her, moving toward her as he did so, if she had ever seen anything like his penis, all the while retaining it in his hand and shaking it at her. Seeing appellant advancing upon them the little girls quickened their pace and finally broke into a run to avoid him. Appellant pursued them for a distance, telling them again to hold on, quickening his gait to overtake them but soon after they began to run he slackened his speed and finally stopped the pursuit. Upon reaching home in the afternoon the little girls complained to their father of what appellant had done, and the latter procured his arrest, following which he was identified by the girls as the guilty party. Appellant did not himself testify on the trial, or attempt by other witnesses to contradict the little girls. It was, however, contended by appellant's counsel in asking a new trial in the circuit court, and is now urged, that the foregoing undisputed facts do not sustain the charge of attempted rape made in the indictment; therefore the trial court should have given the peremptory instruction asked by appellant at the conclusion of the evidence. This contention sharply presents the only serious question in the case.

The indictment was found under section 1154, Ky. St. 1903, which provides: "Whoever shall attempt to commit a rape upon the body of an infant under twelve years of age shall be confined in the penitentiary not less than five nor more than twenty years." There is no statute in this state defining rape or an attempt to commit rape. It is therefore necessary to look to the common law to ascertain the elements and meaning of each of these crimes. Rape at common law may be defined as the carnal knowledge of a female, forcibly, and against her consent. Force, actual or constructive, is an essential element of the crime of rape, but any, even the least, force, is sufficient. All male persons over the age of 14 years are presumed to be physically capable of committing the crime of rape, unless the contrary appears. An attempt to commit rape includes every ingredient of rape except its accomplishment; that is to say, if the assault is made under such circumstances as that the act of sexual intercourse, if it had been actually accomplished, would have been rape, it would constitute the crime of an attempt to commit rape. What we have said as to the necessity of proof of force, actual or constructive, to constitute the crime of rape, or attempted rape, does not apply when the female is under 12 years of age, as a female under that age is in law incapable of consenting to an act of sexual intercourse. Such intercourse with her consent makes the male guilty of rape, without proof of any force. As said by this court in Fensten v Commonwealth, 82 Ky. 549: "A female under that age (12 years) is presumed to be, as an idiot, in fact is, without capacity and discretion to comprehend fully the consequences of yielding to the ravisher, or strength of will to resist his influence and importunities. Hence carnal knowledge of her, even with her nominal consent, is in legal contemplation forcible and against her will, and though not deemed of as heinous nature, nor punished with the same severity,...