White v. Com.

• Decision Date: 24 November 1894
• Citation: 96 Ky. 180,28 S.W. 340
• Parties: WHITE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

28 S.W. 340

96 Ky. 180

WHITE v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 24, 1894

Appeal from circuit court, Henderson county.

"To be officially reported."

Sam White was found guilty under a charge of having had carnal knowledge of a female under 12, and appeals. Reversed.

J. L Dorsey, for appellant.

W. J Hendrick and J. H. Powell, for the Commonwealth.

QUIGLEY C.J.

At the September term, 1894, of the Henderson circuit court, the grand jury of Henderson county found an indictment against appellant for rape, committed in manner and form as follows "The said Samuel White, on the 29th day of July, 1894 and before the finding of this indictment, in the said county of Henderson, did unlawfully, violently, and feloniously make an assault upon the body of one Lilly Ann Lewis, a female infant under twelve years of age, and her, the said Lilly Ann Lewis, then and there, forcibly and against her will, feloniously did ravish and carnally know, against the peace and dignity of the commonwealth of Kentucky." To this indictment the defendant entered the plea of "Not guilty," and, on trial had, the jury returned into court the following verdict: "We, the jury, find the within named defendant not guilty as charged, but guilty of having carnal knowledge with the infant Lilly Ann Lewis, and fix his punishment at confinement in the penitentiary for ten years." The defendant entered a motion for a new trial, and in support thereof filed the following reasons: The verdict of the jury is against the law and evidence; the court erred in permitting the prosecuting witness, Lilly Ann Lewis, to testify; the court erred in refusing to permit defendant's witnesses to state that the house where the infant is charged to have been raped was a bawdyhouse, and had the reputation of being such in the neighborhood; the court erred in giving to the jury instructions 1, 2, 3, and 4, and refusing to give to the jury instructions A and B, asked to be given by defendant,-to all of which the defendant objected and excepted. The motion for a new trial having been overruled, and judgment having been pronounced against the defendant, he prosecutes this appeal to reverse the judgment of the lower court.

This court has held repeatedly that it has no power to reverse a judgment of conviction in a criminal prosecution upon the ground that the evidence is not sufficient to support the verdict, being restricted to the single inquiry whether there was any evidence before the jury conducing to show the guilt of the accused; and in this case we think there was.

There is no error in the admission or non-admission of testimony, either as to relevancy or competency. The intelligence of the witness is the true test of competency, and that must be determined by the court, while the weight to be given to the evidence is for the jury. A child may be ignorant of God, and of the evil of lying, and of the punishment prescribed therefor, both here and hereafter, and yet have sufficient intelligence to truthfully narrate facts to which its attention is directed. Mr. Blackstone, in his Commentaries (Book 4, p. 213, 3d Ed. thereof), says: "Moreover, if the rape be charged to be committed on an infant under twelve years of age, she may still be a competent witness if she hath sense and understanding to know the nature and obligations of an oath, or even to be sensible of the wickedness of telling a deliberate lie. Nay, though she hath not, it is thought by Sir Matthew Hale that she ought to be heard without oath, to give the court information; and others have held that what the child told her mother or other relations may be given in evidence, since the nature of the case admits frequently of no better proof. But it is now settled that no hearsay evidence can be given of the declaration of a child who hath not capacity to be sworn, nor can such child be examined in court without oath, and that there is no determinate age at which the oath of a child ought either to be admitted or rejected. Yet, where the evidence of children is admitted, it is much to be wished, in order to render their evidence credible, that there should be some concurrent testimony of time, place and circumstances, in order to make out the fact, and that the conviction should not be grounded singly on the unsupported accusation of an infant under years of discretion. There may be, therefore, in may cases of this nature, witnesses who are competent,-that is, who may be admitted to be heard,-and yet, after being heard, may prove not to be credible, or such as the jury is bound to believe; for one excellence of the trial by jury is that the jury are triors of the credit of the witnesses, as well as of the truth of the fact. 'It is true,' says this learned judge, 'that rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered that it is an accusation easy to make, hard to be proved, but harder to be defended by the party accused, though innocent."' See, also, Whart. Crim. Ev. §§ 352, 366, 368, and the case of Bush v. Com., 80 Ky. 244, in which it was held (Judge Hines delivering the opinion) "that the constitution changes the common-law rule, and that all persons are competent as witnesses, so far as any religious test is concerned." The evidence rejected, if admitted, would only have gone to the reputation of the place generally. The method of impeaching the character of witnesses for truth and veracity, virtue and morality, is well settled by the law, and should always be done by direct, positive testimony of those who are acquainted with the reputation of the witness for either, among his or her neighbors and acquaintances, and not inferentially by proving that a certain house in the neighborhood has the reputation of being a bawdyhouse.

As to the instructions given by the court, it is only necessary for the purposes of this appeal, to consider instruction No. 2, which reads as follows: "If they have a reasonable doubt as to whether or not the defendant is guilty of rape as above defined, but believe, to the exclusion of a reasonable doubt, that he had carnal...