Weinel v. Commonwealth

Opinion op the Court by Yan Sant, Commissioner —Reversing. Appellant was convicted of the crime of rape, allegedly committed upon Mrs. Ann Hutchinson, in her apartment in Latonia on the morning of January 9, 1946. He was sentenced to confinement in the State Reformatory for a period of ten years. Two errors are assigned for reversal: (1) The Court erred in overruling appellant’s motion for a directed verdict of acquittal; and (2) the Court erred in admitting a verbal confession allegedly made at police headquarters in the presence of seven or eight officers. Mrs. Hutchinson lived in an apartment consisting of three rooms and a bath on the second floor of a building owned by Reverend and Mrs. F. W. May. A five-room apartment on the first floor was unoccupied o-n the above-mentioned date, but Mr. and Mrs. May were cleaning and painting it for future occupancy. The -apartment *743 house is entered from the street through a door leading directly into a reception room. In close proximity to the entrance, and on the right as one enters, are the stairs leading to the second floor apartment. The door of entrance to the apartment is at the head of the stairs. The ground floor apartment is entered from the narrow reception room through French doors. At about 10:30 o’clock in the morning, appellant entered the apartment house. Mrs. May was painting in the front room of the downstairs apartment. Appellant briefly engaged her in conversation, and then went to the basement and talked with Mr. May; he then ascended the stairs to Mrs. Hutchinson’s apartment. Mrs. Hutchinson testified that, when appellant entered her apartment he sat for a while in a chair near the door, then inspected the various rooms in the apartment. She then stated to him that he had better go, that Mr. and Mrs. May “would think funny.” Both of them went to the first floor apartment, Mrs. Hutchinson talking to Mrs. May while appellant talked to Mr. May. Shortly thereafter Mrs. Hutchinson ' returned to her apartment, and in about ten minutes appellant ascended the stairs and re-entered the apartment. Mrs. Hutchinson’s account of what then occurred is as follows: “Q. Did you see him (appellant) again that morning? A. I went back upstairs; I think I went into the kitchen to get a drink of water, and came back to the bed and was hemming my curtains. ££Q. Sitting on the side of the bed? A. Yes, sir. ££Q. How long were you there before Weinel came back, if he came back? A. I wasn’t there very long at all. ££Q. What do you mean by not very long, a minute, an hour or two hours? A. I wouldn’t say over ten minutes, if it was that long. ££Q. Did he come back? A. He came back upstairs, and as he came to the door he said he came to tell me goodby, and he walked over to the crib and said something to the baby, then walked back to the door. ££Q. He walked back to the door; did he hesitate or stop? A. Yes, that is when I became frightened, when he stood in the doorway. *744 “Q. Then what, if anything, did he do? A. He came over to the bed and took the curtains 'out of my hands, shoved me.back on the bed. You told me to be blunt about it, so I am. He separated my legs with his legs and then he committed the act? “Q. Did his body enter into your body? A. Yes sir. “Q. Then after that what, if anything, happened; did he leave or stay? A. He went to the kitchen hurriedly; I dashed to the bathroom and locked the door, and before I came out of the bathroom, I heard the front door slam. “Q. When you came out of the bathroom, was he there or had he gone? A. He had already gone. I went down to see Mrs. May. ft ft ft ft ft ft “Q. Did you or not at that time tell either Mr. or Mrs. May as to what had happened to you upstairs? A. No, not downstairs I didn’t tell them of this act the first time; I didn’t tell Mr. May of this act at all; I asked her to come upstairs. ft ft ft ft ft ft ££Q. Did she go with you? A. Yes, sir, she came up. “Q. Did you at that time make a complaint to helas to what had happened to you upstairs? A. Yes, I did. ft ft ft ft ft ft “Q. Did you or not consent to what happened to you, what he did to you up there that morning? A. No, sir. “Q. What, if anything, did you do or try to do to prevent it? A. I tried to push him, and I said I was going to make an outcry. ££Q. You did what? A.. I told him I was going to holler. ££Q. What did he say? A. His statement was, £You better not.’ ££Q. What effect, if anything, did that have on you? A. I knew he could overpower me; he frightened me. ££Q. Did he? A. Yes, sir. *745 “Q. What do you say, what is your weight? A. One hundred and forty. “Q. What does Mr. Weinel weigh; how tall is he? A. I don’t know that. “Q. You have stated that there was a door or doorway at the top of the steps into the room where you were? A. Yes, sir. £iQ. Was that door open or closed? A. Open. ££Q. Was it an open doorway, or the door just opened? A. The door was jlist open. “Q. What clothing, if anything, did you have on at the time of this incident? A. A skirt, a smock, a slip and brassiere. ££Q. Did’you have on a waist of any kind? A. My smock was my waist. ££Q. What, if anything, did he do to your clothing? A. He jerked them back on the bed. ££Q. And you say he parted your lower limbs? A. Yes, sir. £ £ Q. Did you or not voluntarily submit to his intercourse with you? A. I did not. ££Q. Was it or not with or against your will? A. It was against my will. % * # * * * “Q. Did he or not push you down? A. He did. ££Q. After he pushed you down, what, if anything, did he do? A. I told you that he pried my legs apart with his legs. ££Q. And where were his hands? A. His hands were under me right here. (Indicating waistline.) ££Q. On your body? A. On each side of me. ££Q. What, if anything, did you do at that point? A. I had this part of me ready to push, and I tried to push his shoulders away, and all I could push was on his shoulders. ££Q. Did either of you say anything? A. Yes, I told him I was going to scream, and his statement was ‘You had better not.’ ” *746 On cross-examinatioxx, she made the following answers to the following questions: “Q. I am asking you now where his hands were? A. Right here. (Indicating waistline.) “Q. Right where? A. On the bed. “Q. Where was his right hand? A. Mr. Smith, if you had been in my place, you wouldn’t know beans about it. “Q. I ám asking you where his right hand was. A. Right here, on the bed. “Q. Where was his left hand? A. On the bed on this side, supporting himself on the bed. “Q. He didn’t have hold of you with his hands? A. No, he was bearing on me. “Q. He didn’t use his hands to separate your legs, did he? A. No. * ***** “Q. Did you say you were going to scream, holler, or make an outcry; which one did you say? A. Holler. “Q. You didn’t holler, did you? A. No, because he threatened me. , ****** “Q. You didn’t call Mrs. May, did you? A. No.” It was shown by uncontradicted evidence that a person talking in an ordinary tone of voice in Mrs. Hutchinson’s bedroom could be heard by a person in the room which Mrs. May occupied while the alleged crime was being committed. It is inconceivable that the crime of rape can be committed in the manner related by the prosecuting witíxess. She stated that appellant did not use his hands except to rest them on the bed; there was no outward sign, either on her body or clothing, to indicate force was used; and the only threat she testified to was that, when she told appellant she was going to “holler,” he said, “You had better not.” Even if this conversation took place, it must have been whispered to have escaped the ears of Mrs. May. The crime of rape cannot be committed in such gentle manner; and no woman, zealous of maintaining her chastity, with help so near, would fail *747 to sound an alarm in an endeavor to prevent a criminal assault upon her. We have upheld juries’ verdicts convicting men of this offense in many doubtful cases; but in each of those cases, there was some evidence of probative value upon which the jury could have rested its decision; and the Court was mindful, as it now is, of the rule prevailing in this jurisdiction, that any evidence, though it be slight, but which constitutes more than a scintilla, tending to establish the guilt of the accused, is sufficient to take the case to the jury and to sustain its verdict; and this Court will not disturb the verdict of a properly instructed jury upon the ground of insufficient evidence, unless it be so palpably and flagrantly against the evidence as to shock the conscience or necessarily lead to the conclusion that it was the result of passion or prejudice, rather than deliberate consideration upon the part of the jury. Branham v. Commonwealth, 223 Ky. 233, 3 S. W. 2d 629; Fortney v. Commonwealth, 290 Ky. 659, 162 S. W. 2d 193. But where the prosecuting witness relates circumstances which, in the light of human experience, preclude the possibility, or even the probability, of the crime having been committed, we will not hesitate to reverse the judgment and set aside the conviction. Webb v. Commonwealth, 223 Ky. 424, 3 S. W. 2d 1080; Carter v. Commonwealth, 245 Ky. 257, 53 S. W. 2d 521; Muneey v. Commonwealth, 245 Ky. 664, 54 S. W. 2d 46; Sells v. Commonwealth, 271 Ky. 447, 112 S. W. 2d 692; and Hightower v. Commonwealth, 286 Ky. 561, 151 S. W. 2d 39. No doubt the minds of the jurors were inflamed by the fact that a fifty eight year old man engaged in illicit intercourse with the nineteen year old niece of liis wife; and the further facts that the prosecuting witness was the-wife of a soldier and the mother of a four months old child. In no sense of the word can such conduct be condoned; but the punishment should be commensurate with the offense, a misdemeanor under our statutes. KBS 436.070. Violent action resulting from the inflamed minds of jurors must be guarded against as carefully as violence of the mob in the street. In the latter case, law enforcement officers may prevent the injustice; in the former, the power of prevention vests solely in the courts, unless, perchance, the Chief Executive should exercise the prerogative of his office. *748 It is unnecessary for us to determine the validity of the so-called confession, because it adds nothing to the impossible story told by the complaining witness. We are of the opinion the trial court erred in overruling appellant’s motion for a peremptory instruction. The judgment is reversed.