Stewart v. Commonwealth

• Decision Date: 12 October 1928
• Citation: 225 Ky. 731
• Parties: Stewart v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

Page 731

225 Ky. 731

Stewart v. Commonwealth.

Court of Appeals of Kentucky.

Decided October 12, 1928.

1. Criminal Law. — Case will not be reversed because jury believed testimony of one set of witnesses rather than that of another, where testimony is in irreconcilable conflict.

2. Criminal Law. — In criminal prosecution, it is province of jury to pass on facts.

3. Criminal Law. — In criminal prosecution, jury may believe testimony of certain witnesses and reject that of others, or may believe testimony of none of witnesses is entirely true, and yet it may from testimony of all witnesses discover the truth.

4. Rape. — In prosecution for rape of prosecutrix 14 years old, evidence held to authorize jury in finding that defendant had sexual intercourse with prosecutrix with her consent, and sustained conviction, under Ky. Stats., Supp. 1926, sec. 1155, subd. 2, for carnally knowing female under 16.

5. Rape. — Under Ky. Stats., Supp. 1926, sec. 1155, subd. 2, sexual intercourse between defendant 28 years old and prosecutrix 14 years old, though consented to by both parties, was illicit and felonious act on part of defendant.

6. Criminal Law. — Grounds of motion for new trial, not discussed in appellant's brief will be treated as waived.

Appeal from Allen Circuit Court.

A.J. OLIVER and W.D. GILLIAM for appellant.

J.W. CAMMACK, Attorney General, and J.M. GILBERT, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Affirming.

Walter Stewart, a man 28 years old, was charged with rape in an indictment drawn under section 1154 of our Statutes. His victim was a girl about 14 years of age, and he was convicted under subsection 2 of section 1155; his punishment being fixed at confinement in the penitentiary for five years. His motion for a new trial was overruled, he excepted to that ruling and has appealed.

No useful purpose would be served by giving the disgusting details of this affair, so they will be omitted. He bases his hope for reversal upon the following alleged errors: First, that the court erred in instructing the jury. This error, as he calls it, consists in this that the court gave to the jury instruction No. 2, drawn under subsection 2 of section 1155, Kentucky Statutes, which is not complained of as to form; but which Stewart insists should not have been given at all, as there was not, so he says, any evidence to support it. He contends that, if the testimony of this girl is to be believed, this was a case of rape accomplished by force, and, if her testimony is not to be believed, and his account of the affair is correct, then he was not in the house at all on the day of the alleged occurrence, and he had no communication with the prosecuting witness other than to speak to her from the road. This court has held that a violation of subsection 2 of section 1155 is a degree of the crime denounced by section 1154. See Morgan v. Com., 222 Ky. 742, 2 S.W. (2d) 370; Moseley v. Com., 206 Ky. 173, 266 S.W. 1048; Dunn v. Com., 193 Ky. 842, 237 S.W. 1072.

The testimony of the witnesses for the defense is in irreconcilable conflict with that of the witnesses for the commonwealth. Necessarily the testimony of one set or the other is false. A case will not be reversed because the jury believes the testimony of one set of witnesses rather than that of another. See Blanks v. Com., 223 Ky. 484, 3 S.W. (2d) 1105. It is the province of the jury to pass upon the facts. The jury may believe the testimony of certain witnesses and reject that of others, or the jury may believe the testimony...