Wright v. Commonwealth

• Decision Date: 26 February 1937
• Citation: 267 Ky. 441,102 S.W.2d 376
• Parties: WRIGHT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

102 S.W.2d 376

267 Ky. 441

WRIGHT v. COMMONWEALTH.

Court of Appeals of Kentucky

February 26, 1937

Appeal from Circuit Court, Boyd County.

Charles Wright was convicted of attempted rape, and he appeals.

Affirmed.

Waugh &amp Howerton and Mont Walker, all of Ashland, for appellant.

B. M Vincent, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for the Commonwealth.

PERRY Justice.

The appellant, Charles Wright, was upon trial, on a charge of attempted rape, an offense denounced by section 1153 Kentucky Statutes, convicted, and his punishment fixed at five years confinement in the penitentiary.

Complaining of this judgment, appellant appeals, seeking its reversal upon the grounds (1) that the verdict is contrary to the law and evidence; (2) that the court failed to correctly instruct the jury, and (3) that it erred in admitting incompetent evidence against him.

It appears that the Middleton and Wright families had lived upon terms of close and friendly intimacy, as neighbors on Hood's creek in Boyd county, Ky. in homes some 500 yards apart, for some months prior to the alleged occurrence of the offense in evidence.

Upon this occasion, wherein the accused is charged with having committed the offense of attempted rape upon Opal Middleton, it appears that Mrs. Middleton had sent Opal, her small seven year old daughter, over to the Wright home to borrow some meal, when, upon her arrival there, she found none of the Wright family at home except Mr. Wright, who, upon hearing her knock at the door, opened it and admitted her, and upon being advised of the nature of her errand, told her that his wife was then away and he did not know whether they had any meal on hand or not, but that he would look around in the kitchen and try to find some. When the infant prosecutrix was asked what the appellant did to her while she was there at his home, she answered that he told her to lay down on the bed, when he pulled up her dress, laid on her and wet on her bloomers down near her private parts. Further she testified that he did not pull off her bloomers, but that as soon as she left the house after this happening, she took them off, put them under her arm and took them home, where, upon her arrival, she told her mother what had happened. Appellee further states that she went upon this errand to the Wright home at about 2 o'clock on the afternoon of April 20 or after she had come back from school, where she was a pupil in the first grade. Further when testifying, upon being so specifically interrogated, she stated that she, while at the Wright home, saw no "little chickens" nor any picture magazines laying on the bed, nor had looked at any magazines while she was lying on the bed, as was testified to by the accused.

Upon cross-examination, she was asked if she laid down on her stomach, to which she answered, "Yes"; that Mr. Wright told her to lay down on the bed, where she laid about two minutes.

Further, upon redirect examination upon this point, she stated that the accused unbuttoned his pants down the front and that after she had laid down on the bed, as Mr. Wright told her to do, he got on her stomach, but that he did not lay on her back; also, that he went into the back room and got a book which had pictures in it and told her to look at it; and that she did not get any meal from Mr. Wright.

The mother, Mrs. Middleton, next testified that she had upon this occasion sent her little daughter, Opal, over to the Wrights' to borrow some meal; that when she came back she asked her if she had gotten it, when she answered that she had not, that Mrs. Wright was not at home and that Mr. Wright had told her he did not have any; that when asked what had kept her away so long, she answered, "Why Mr. Wright got me down on the bed and wet on me," and then she "threw the bloomers down from under her arm and I picked them up and looked at them." Further she testified that upon her then examination of the bloomers she found them wet with seminal fluid; that she was a married woman, some thirty-six years of age, had borne nine children as the issue of her marriage, and was thus qualified and able to positively identify the wet substance she found on Opal's bloomers as seminal fluid.

Also, upon the later return home of Mr. Middleton, he too examined his little daughter's wet bloomers and positively pronounced the wet substance found thereon to be seminal fluid and so testified.

There was no claim made that any penetration was effected upon the little girl by the accused upon this occasion of his charged attempted rape of her.

This was all the testimony introduced in chief by the commonwealth, when the accused testified in his own behalf that little Opal had been sent and came to his home upon this occasion to borrow some meal; that upon her knocking at the door he opened it and let her in, when he was told by her that her mother had sent her to borrow some meal; that he told her his wife, Mrs. Wright, was away at the time, but that he would look about in the kitchen and see if he could find any and had then gone back there to hunt for it; that while he was in the kitchen the little girl, upon hearing the noise of some little chickens he had in a back room of the house, went back there to see them and that, a little while afterwards, on hearing a "cluttering" of the chickens, he went back there to learn the cause of it and found Opal sitting on the side of a tub of water, holding one of them up in her hands, when he had her put it down, took her by the arm and led her back into the front room, telling her to let the chickens alone; that he did not touch the child during this time of her visit, except when he took hold of her when leading her away from his chickens; that while she was there, and he was looking for the meal for her, some one came to the house inquiring as to the whereabouts of a certain store, to which he directed him; also, that just after she had left, Mr. Ferguson, and insurance agent, called at the house to collect an insurance premium owing him. Further Mr. Wright stated that he had been a minister and revivalist for some years, but was at this time occupied as an employee in a nearby foundry, where he reported for work a short while after the little girl left; and was later arrested there that evening, charged with having committed upon her the offense in evidence of attempted rape.

The insurance agent, Mr. Ferguson, referred to by the accused in his testimony as having called at his home a short while after the little girl left, testified, when called as a witness for the accused, that he had visited his home upon the afternoon in evidence to collect an insurance premium when he saw and talked with the appellant, but had noticed nothing unusual in his manner or speech.

Appellant next, by way of further defense to the charge, introduced numerous character witnesses to establish that his general reputation for morality, among those who knew him best, in the neighborhood where he lived was good.

On cross-examination, these witnesses were asked, over appellant's objection, if they had heard talk or rumors in their neighborhood of the commission by the accused of specific prior offenses of rape; if they had not heard talk of the accused's specific offense of raping a little Tackett girl shortly prior to the time he was charged with having committed the instant offense, and also of a like offense committed upon the little McCoy girl about a year before, and also of his rumored commission of other sex offenses about the same time. Upon the conclusion of this evidence introduced by appellant to establish a good moral character, the commonwealth introduced rebuttal evidence tending to show that his reputation for morality in his beighborhood was bad, as based upon the talk heard there as to the above-named instances of sexual misconduct and other like offenses evidencing the possession of such trait of character by the accused.

Such being in brief the evidence heard upon the trial, we will now consider appellant's assignment of errors claimed committed therein, which he argues entitle him to a reversal.

To the first objection urged, that the verdict and judgment thereon is against the evidence, it is sufficient response to state that we are confident that the evidence introduced by the commonwealth, as summarized supra, in support of its contention that the accused was guilty of the crime charged, is sufficient, even though in many respects in conflict with the appellant's defensive evidence, to support the jury's verdict finding the accused guilty.

First, the evidence given by Mr. and Mrs. Middleton and objected to by appellant, that the substance found upon their little child's bloomers when examined by them was seminal fluid, was competent.

In the case of Logsdon v. Commonwealth, 215 Ky. 707, 286 S.W. 1067, it was held, adversely to a like contention there made, that the testimony of three experienced women, that the substance discovered by them upon the person of the little child was seminal fluid, was competent, the court saying:

"The three witnesses were married women, and stated that from experience they were familiar with the appearance and odor of seminal fluid, and, after so qualifying themselves, testified that the substance found upon the person of the little child, judging by its appearance and odor, was seminal fluid. Under those facts they were qualified to testify on the subject, and the testimony was competent."

Alike or equal qualification as to their competency was made both by Mr. and Mrs. Middleton before they likewise here so testified. Further, the testimony of the infant prosecutrix even though only seven years of age, was also competent, as was held in the like case of Meade v....