Smith v. Commonwealth

• Decision Date: 30 January 1901
• Citation: 109 Ky. 685,60 S.W. 531
• Parties: SMITH et al. v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

60 S.W. 531

109 Ky. 685

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

Court of Appeals of Kentucky.

January 30, 1901

Appeal from circuit court, Letcher county.

"To be officially reported."

Lane Smith and Fanny Smith were convicted of the offense of incest, and they appeal. Reversed.

W. F Hall, for appellants.

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

HOBSON J.

Appellants Lane Smith and Fanny Smith, were indicted in the Letcher circuit court for the crime of incest. The jury to whom the case was submitted returned a verdict finding them guilty, and fixing their punishment at confinement in the penitentiary for two years. Ky. St. § 1219. The only witnesses on whose testimony the conviction rests are Solomon Holcomb and Ferriby Frazier. Holcomb testified that in the month of September, 1897, he was working in a clearing for John Smith, the father of appellants, near his house, and at noon took dinner there; that after dinner appellants, Fanny and Lane, stepped out of the house; that he heard some sort of noise, and went out at the door, slipped to the corner of the house, and peeped around; that he then saw Fanny standing up against the house, and Lane had her clothes up, cohabiting with her; that the house was a log house, with large cracks through the walls where they were standing, and they could have been seen on the outside by one on the inside sticking his head out through the hole. He had a scar on his face at the time of the trial, the result of a difficulty between him and appellant Lane in the fall of the year 1898. Soon after this difficulty he went before the grand jury, and swore out the indictment in question. At the time of the alleged crime Fanny was 13 years old and Lane something over a year older. Ferriby Frazier stated that she was out getting sang in the mountains about four miles from where appellants lived in the fall of 1897; that she saw a dog barking, and she went across the point to see whose dog it was, and then saw appellants down in the hollow having carnal intercourse. This witness was not before the grand jury, and shortly before the trial of the case she had said that she was expecting to be summoned as a witness for the commonwealth in this case, that she did not know a thing in the world about the case, and that she never in her life saw any harm of the appellants. She testified that she said nothing about what she saw for two years afterwards, and it was shown that she, too, had fallen out with the appellant Lane. A number of other witnesses were introduced on the trial, but none of them had ever seen or heard an act or word improper between the brother and his little sister. Appellants introduced a number of witnesses by whom they proved that they were acquainted with the general moral character of the witness Soloman Holcomb, and that it was bad. They then offered to show that his general character for truth or veracity was bad, to which the commonwealth objected, and the court sustained the objection, and excluded the evidence. This was error. The appellants had a right not only to show that the general moral character of the witness among his neighbors, and acquaintances was bad, but they had also the right to show that his general character for truthfulness was also bad, and evidence on this point might have had great weight with the jury. Appellants both testified positively that the statement of Holcomb was wholly untrue and without foundation, and the proof introduced by them tended to show that Holcomb was not at their house at the time referred to. His statement was so unreasonable that, if his general character for truthfulness had been impeached, it is hard to see how the jury could have found the verdict against them. Appellants also testified that they were never in their lives at the place referred to by Ferriby Frazier, and denied positively all the facts she testified to; and under all the proof her testimony is but little less incredible than Holcomb's. It is insisted for appellants that her testimony should have been excluded, as it showed, if true, a separate offense, and that the commonwealth should have been confined in its proof to one offense. In Bish. St. Crimes, § 731, it is said that incest, being a particular form of fornication or adultery, is governed usually by the same principles; and in section 680, in discussing adultery, the rule is thus stated: "Where the attempt is to prove adultery at a particular time and place, familiarities between the same parties tending thereto, or adultery itself at a prior time, and in another or the same place, may be shown in aid of the conclusion; and within familiar principles it is no objection that another crime than the one charged is also made to appear." And in section 682, after showing that the evidence is admitted on the presumption that an adulterous disposition once existing between two persons will continue, the author says: "The limit, practically, to the evidence under consideration is that it must be sufficiently significant in character and sufficiently near in point of time to have a tendency to lead the guarded discretion of a reasonable and just man to a belief in the existence of the important element in the fact to be proved. If too remote or insignificant, it will be rejected in the discretion of the judge who tries the case." The evidence of Ferriby Frazier appears to have been sufficiently near in point of time to be admissible under this rule.

It is also insisted for appellants that the court should have given the jury an instruction asked by them to the effect that the evidence of Ferriby Frazier could only be considered a corroborating the testimony of Holcomb. The indictment did not identify the particular act of carnal knowledge between the parties upon which it was based, except by the date on which it was alleged to have been done, and by the express provision of the Code the time alleged in the indictment is...