White v. Commonwealth

• Decision Date: 11 December 1942
• Citation: 166 S.W.2d 873,292 Ky. 416
• Parties: WHITE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

166 S.W.2d 873

292 Ky. 416

WHITE v. COMMONWEALTH.

Court of Appeals of Kentucky

December 11, 1942

Appeal from Circuit Court, Fayette County; Chester D. Adams, Judge.

R. J White was convicted of carnally knowing a girl of 14 1/2 years of age with her consent, and he appeals.

Judgment reversed.

Troy D Savage and Clement F. Kelly, both of Lexington, for appellant.

Hubert Meredith, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for appellee.

SIMS Commissioner.

The appellant, R. J. White, 21 years of age, was convicted of carnally knowing Dorothy Gullett, a girl fourteen and a half years of age, with her consent, and his punishment was fixed at confinement in the penitentiary for 7 years. To reverse the judgment he assigns four errors: 1. The instructions were erroneous; 2. incompetent evidence was introduced by the Commonwealth; 3. the court should have granted him a new trial because of newly discovered evidence; 4. the verdict is flagrantly against the evidence.

Early in the evening of September 2, 1941, Dorothy in company with Irene Green, a widow of about 30 years of age, went to the Golden Slipper, a roadhouse located near the corporate limits of Lexington. There they drank and danced until the place closed shortly before midnight. Rose White, the wife of appellant, worked at the Golden Slipper and on this particular night her husband was assisting her due to the fact she was suffering from a sore leg. The White residence is located approximately a block from this resort and as Dorothy and Irene were drunk at closing time and did not want to go home in that condition, they went home with Rose and her husband, although not previously acquainted with the Whites.

Soon after arriving at the White home, Irene went to sleep, or "passed out" as one witness described her, upon a divan in a hall which immediately adjoined the bed room where Dorothy and the Whites all got in the same bed. There was no door between the bed room and the hall--just an archway separating them--but Irene in her condition was oblivious to what took place in the bed room. Rose removed all of Dorothy's clothes but her slip. Dorothy got in one side of the bed but fell out three times and vomited in the bed. Dorothy testified the last time she was put in bed she was placed between appellant and his wife and that he had intercourse with her; that she resisted, called to his wife and grabbed her but she could not arouse Rose; that appellant slapped her, and also held his hand over her mouth. Immediately after the occurrence she left the house wearing nothing but her slip which was badly torn, went home and reported to her father what had happened, and he called the police.

Appellant and his wife gave quite a different version of what happened in the bed. Rose had been between her husband and Dorothy in bed until Dorothy fell out the third time. Appellant then placed Dorothy in the middle and laid down on top of the covers to prevent her from again falling out of the bed. Dorothy became sick, vomited on him as well as the bed, and he became disgusted, went upstairs and slept on a pallet until the officers arrived. Both denied he had intercourse with Dorothy and both testified Rose had not been drinking and was wide awake as long as appellant was in the bed room. Rose testified that after he went upstairs Dorothy left the house, was gone about 15 minutes, came back, got in bed, groaned for a few minutes like she was sick, then jumped up and ran down the street like a maniac.

Rose and Irene testified that some half hour before the Golden Slipper closed Dorothy went to the ladies' rest room which was on the outside. Knowing that she was drunk, they went to see about her. As they approached the ladies' rest room a man left it, and they found Dorothy inside with her clothes disarranged and crying. Dorothy denied this.

Appellant complains that the court should not have instructed on forcible rape as denounced in § 1154, Ky.Stats., which is a higher crime than carnally knowing a girl under the age of consent as denounced in § 1155, insisting that the indictment was drawn under the latter section. The indictment is in artificially worded but no demurrer was filed thereto, and it charged forcible rape under § 1154 and not consent rape under § 1155 when it alleged that appellant feloniously assaulted Dorothy and without her consent had sexual intercourse with her. But admitting arguendo that the indictment did not charge the higher offense, still appellant was not prejudiced by the instruction given under § 1154 because the jury disregarded it and convicted him under the second instruction which was in conformity with § 1155. Taber v. Com., 82 S.W. 443, 26 Ky.Law Rep. 754; Hendrickson v. Com., 81 S.W. 266, 26 Ky.Law Rep. 224; Brown v. Com., 122 Ky. 626, 92 S.W. 542; Ragsdale v. Com., 260 Ky. 645, 86 S.W.2d 532; Crim.Code of Prac. § 340.

It is insisted that the court should have instructed on the common law misdemeanor of attempted carnal knowledge of prosecutrix with her consent as was directed in Merriss v. Com., 287 Ky. 58, 151 S.W.2d 1030. In the Merriss case, there was some question as to whether prosecutrix had been penetrated, while in the instant case the evidence of Dorothy and that of the two physicians who examined her within a few hours after the alleged attack shows conclusively she had been penetrated. She testified she was entered and the doctors testified they found her humen broken and her vagina was torn and still bleeding which showed a recent entry had been made. The court did not err in refusing to instruct on the common law misdemeanor of attempting to have carnal knowledge of Dorothy with her consent.

There is no merit in the criticism that the second instruction under which appellant was convicted was confusing because it incorporated in one paragraph all the various degrees of the offense denounced by § 1155 of which appellant might be convicted. As was said in Couch v. Com., 284 Ky. 445, 145 S.W.2d 49, 50, it could not be doubted that a "jury of ordinary laymen" understood its meaning. From the circumstances of Dorothy being drunk and getting in bed with appellant and his wife wearing nothing but a slip, the jury reasonably might have inferred that "she consented though all the while resisting". Nor was it error under the evidence adduced to instruct on the offense of detaining Dorothy against her will and on the offense of assault and battery, since appellant denied the act of intercourse. Boyd v. Com., 219 Ky. 62, 292 S.W. 478. Had it been erroneous to give such instructions, nevertheless appellant was not prejudiced since he was not convicted under either of them. Sloan v. Com., 268 Ky. 241, 104 S.W.2d 988.

On the day of his arrest appellant freely and voluntarily gave to G W. Maupin, a police officer of Lexington, a statement of his version of the affair, but in advance told Maupin he would not sign the statement. After Maupin wrote the statement, appellant read it over and made no complaint as to its correctness. Objection is made because Maupin was allowed to read this unsigned statement to the jury. On the witness stand appellant did not contend he did not give the statement to Maupin or that it was...