222 Ky. 120
Court of Appeals of Kentucky.
TINSLEY v. COMMONWEALTH.
Nov. 29, 1927.
ACTION: Reversed and remanded.


Appeal from Circuit Court, Knox County.
Kelly Tinsley was convicted of unlawfully detaining a female with intention to have carnal knowledge of her, and he appeals.

McCANDLESS, J.
Kelly Tinsley was sentenced to a term of 3 years in the state penitentiary for the crime of unlawful detention of a female, against her will, and with the intention to have carnal knowledge of her. On this appeal it is insisted that the court erred in the introduction of evidence and in failing to give a directed verdict in defendant's favor. The evidence shows that both parties are colored. The prosecuting witness, Rosie Partin, is 20 years of age and was employed at the bus terminal at the south end of Barbourville, her home being some distance north of the city. In going to work she traveled south to the railroad crossing at which point the tracks are intersected by Johnson's lane, an asphalt road, which after passing the tracks runs parallel therewith northwesterly on the western side thereof five or six hundred yards to a pile of rubbish called the "junk pile," at which point it turns sharply to the west and at a distance of 300 yards connects with a city street. At the last intersection there is a brick store and south of the street a number of residences. About midway between the railroad crossing and the junk pile the asphalt road is crossed by a railroad siding leading down to the brick plant, and there are a number of houses about 100 yards below that intersection. The Dixie Highway also parallels the railroad tracks on the west to a point near the asphalt crossing above mentioned and north of this point turns to the right up the hill, the asphalt road connecting with it about 100 yards from where it crosses the railroad and at a point near Johnson Riley's store which is located on the east side of the Dixie. Riley also has a residence just beyond his store, the front of his residence being set back even with his store. There is another residence just beyond Riley's store on the east side of the Dixie. The defendant lived on the Dixie Highway opposite the latter residence and 300 yards from the intersection of the asphalt road and the railway intersection.

The prosecuting witness states that on Sunday morning, April 5, 1927, she started to her work traveling the railroad to the asphalt road intersection. As she reached this point her attention was attracted to a passing automobile on the Dixie. Upon looking up she saw the defendant on his porch waving to her. His house was upon a high embankment, and he ran down the steps and started in her direction; that she was alarmed and ran up the asphalt road as fast as she could; that when she reached the turn of the road at the rubbish pile she looked back and saw defendant by the side of the asphalt road some 400 feet to her rear. She ran on to the brick store and then looked back again and saw the defendant about halfway between the brick store and the rubbish pile; that at that time he called to her, "Hello, wait," but that she did not wait, but went on to her work.

The defendant denies all of her statements, and denies seeing her, and claims that at the time complained of he was picking up coal from the railroad tracks and carrying it home, and proves by the Rileys that they saw him carrying three sacks of coal. Other witnesses testify that his home and the Dixie Highway in front of his house cannot be seen from the road crossing.

It is well settled that a person may be detained without a physical taking, and from the above citations it will be noted that the court has given a liberal definition of the word "detention," but in no instance has it been held that a case was made out where it was not shown that the prosecutrix had in some way been hindered or prevented from going to or where she desired. And in all the cases mentioned the parties were in such proximity to each other as reasonably to enable the defendant to make an assault upon the prosecutrix. True, evidence as to pursuit has been freely admitted as part of the res gestae, and as proof of motive where under all the facts a detention is shown. But here it is not claimed that the defendant was ever within 350 feet of the prosecutrix; he did not intercept, hinder, or delay her, or cause any change in her route. The most that can be said is that he pursued or chased her at long range. Unexplained, this conduct is reprehensible, and it might be inferred that he acted with a wrongful purpose, but it would be an anomaly in law to say that such acts constituted a detention.

It follows that the court should have given a peremptory instruction to find the defendant not guilty. Much complaint is made of incompetent evidence, but under the conclusions reached, supra, it is not deemed necessary to consider this.

Wherefore the judgment is reversed and cause remanded for proceedings consistent with this opinion.

Ky.App. 1927.
TINSLEY v. COMMONWEALTH.
300 S.W. 368, 222 Ky. 120


     

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