Sandefur v. Com.

• Decision Date: 16 May 1911
• Parties: SANDEFUR v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

137 S.W. 504

143 Ky. 655

SANDEFUR v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 16, 1911

Appeal from Circuit Court, McLean County.

George Sandefur was convicted of statutory rape, and he appeals. Affirmed.

Glover H. Cary, F. A. Lochry, W. G. Newton, and L. P. Tanner, for appellant.

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

CARROLL J.

The appellant was indicted under section 1155 of the Kentucky Statutes (Russell's St. § 3773), reading: "Whoever shall unlawfully carnally know a female under the age of sixteen years or an idiot shall be confined in the penitentiary not less than ten nor more than twenty years"--the indictment charging that he unlawfully and carnally knew and had sexual intercourse with Ruth Smith, an idiot. Upon a trial the jury found him guilty, and fixed his punishment at confinement in the state prison for 10 years. The errors relied on for reversal are (1) that Ruth Smith was not shown to be an idiot; (2) that the testimony of T. D Little relating to confessions made by the appellant was incompetent; (3) that the evidence for the commonwealth was not sufficient to authorize a verdict of guilty; (4) that the court erred in failing to properly instruct the jury; (5) that a continuance should have been granted; (6) that the attorney for the commonwealth was guilty of misconduct in his argument to the jury; (7) that there was no evidence that the offense charged in the indictment was committed in McLean county; and (8) error of the court in requesting the jury to make a verdict.

It was of course, indispensable to a conviction that the commonwealth should establish that the prosecutrix, Ruth Smith, was an idiot.

The evidence upon this question is in substance this: She was an unmarried woman, about 21 years of age, whose mother had died some three years before the alleged criminal conduct of appellant occurred. A number of witnesses testified that from her infancy she had been feeble-minded; that she did not learn to talk until she was eight or nine years old, and always had an impediment in her speech; that she did not play with other children or as other children did, or take part in the games that children engage in and enjoy, nor did she ever take any interest in, or seem to understand, what was going on about her; that, although sent to school for some time, she scarcely learned anything, and could not so much as write her name intelligibly; that she knew her parents and relatives, and could go about the streets and in the neighborhood unattended; that at the table she knew what she wanted to eat, and took the food and other things that were handed to her, but in this and in other matters during the lifetime of her mother she depended as a child would upon its mother for everything. She seldom talked to any person, and, if asked a question would answer it generally in monosyllables, "Yes" or "No." She did nice needlework, but could not make any garments. She could cook plain bread, meat, potatoes, and other simple articles, and do such household work as sweeping and the like when some one told her what to do. A baby was born of her intercourse with appellant, but she did not seem to appreciate or understand that she was the mother of a child, and treated her off-spring as a small child would a doll. In short, we may say from the evidence that the prosecutrix was virtually destitute of reason, and did not have ordinary intellectual powers or sufficient mental capacity to appreciate or understand the shame and wrong of having illicit intercourse or the will power to resist in any degree the endeavors of any man who might seek to take advantage of her. She had a glimmering of reason, but not enough to light the way of life, and, while capable of minding a simple request and doing a few little everyday things, she lived and moved unconscious of what was going on about her. This being her condition, we think it was for the jury to say whether or not she was an idiot, and that the jury did not make any mistake in finding that she was as they did when they returned a verdict of guilty.

It is not necessary to constitute an idiot in the meaning of the statute, or even generally, that the person shall have been wholly destitute of mind from infancy or totally deficient in intellectual power. The word "idiot" is variously defined by law writers and courts; and, while the definitions recognize that an idiot is a person who from birth or infancy has been lacking in ordinary natural intelligence, they differ as to the degree of imbecility necessary to constitute idiocy. Some of them go to the extent of saying that an idiot is a person wholly destitute of mental powers from birth; while others describe idiocy as mental deficiency not necessarily extending to total lack of understanding. Webster defines an idiot as "a human being destitute of the ordinary intellectual powers, whether congenital, developmental or accidental; commonly a person without understanding from birth." In Bouvier's Law Dictionary the definition given is: "A person who has been without understanding from his nativity, and whom the law therefore presumes never likely to attain any." In 1 Russell on Crimes, p. 6, the author says an idiot is: "A fool, a madman, from his nativity, and one who has never had any lucid intervals; and such a one is described as a person that cannot number twenty, tell the days of the week, does not know his father or mother, or his own age; but these are mentioned as instances only; for whether idiot or not is a question of fact for a jury." In Blackstone, the definition given is: "A man is not an idiot if he hath any glimmering of reason, so that he can tell his parents, his age, or the like common matters." In Crosswell v. People, 13 Mich. 427, 87 Am.Dec. 774, the court on this subject said: "In Chitty's Medical Jurisprudence an "idiot" is defined to be 'a person who has been defective in intellectual powers from the instant of his birth, or at least before the mind had received the impression of any idea.' Again, Chitty says that idiocy consists in 'a defect or sterility of the intellectual power, while lunacy or madness consists in a perversion of intellect.' All these definitions imply either a weakness or perversion of the mind or its powers--not their destruction. Hence an idiot cannot be said to have no will, but a will weakened or impaired, a will acting but not in conformity to those rules and motives and views which control the actions of persons of sound mind."

The trial court in the case before us defined an "idiot" as: "A natural fool; a fool from birth; a human being in form but destitute of reason from birth and of the ordinary intellectual power of man." As the word "fool" is defined by Webster to be: "One destitute of reason or of the common powers of understanding; an idiot; a natural; a person deficient in intellect; one who acts absurdly or pursues a course contrary to the dictates of wisdom; one without judgment; a simpleton; a dolt." We think the words "a natural fool," "a fool from birth," might well have been omitted from the instruction, although their addition to it was not at all prejudicial to appellant. Taken as a whole, the instruction fairly expressed the definition of an idiot, although we think an idiot might more aptly be defined as a person who has been from birth or infancy deficient in mental capacity, and destitute of the ordinary intellectual powers.

The question of the competency of Little's evidence and the sufficiency of the evidence generally to sustain the verdict may be considered together. The appellant was an unmarried man about 30 years of age. For several months prior to June 10, 1910, he lived and worked at his trade as a carpenter at Beech Grove, in McLean county, in the neighborhood in which the prosecutrix lived; and there was evidence for the commonwealth conducing to show that in January and the early part of February, 1910, the appellant boarded at a house where the prosecutrix during a part of the time also boarded, and where she went and remained occasionally overnight after she had ceased to be a regular boarder. But there is no evidence that appellant associated with her, or that he showed her any attention. In June, 1910, appellant left McLean county, and went to Owensboro, Ky. where he remained a while, and from there he went to Evansville, Ind. Some time after his departure from McLean county, it was discovered that the prosecutrix was pregnant, and on October 28th she gave birth to a child. In July 1910, a warrant for the arrest of appellant, charging him with the offense for which he was indicted, was issued in McLean county, and T. D. Little, a constable of McLean county went to Evansville, where the appellant then was, and, after informing him of the charge against him, told him that he had come to have him arrested, whereupon appellant agreed to and did return with him to McLean county, although Little did not have a requisition. Little testifies that on the train between Evansville, Ind., and Henderson, Ky. the following conversation took place: "Sandefur asked me, 'How far along do they say the girl is?' And I says, 'Well, her father says the best he can find out, she was between four and five months gone.' And he said, 'That won't do; I know. You needn't tell me about a woman being in a family way when she had her monthlies on her bad.' He said, 'I know better when her courses was on her than she knew herself;' and that he kept tab on that, and he said, 'It was...