Court of Appeals of Kentucky.
Jan. 16, 1895.
ACTION: Affirmed.

Appeal from circuit court, Clay county.

William Couch was convicted of taking a woman against her will with the intent to have carnal intercourse with her, and appeals.

"Whoever shall unlawfully take or detain any woman against her will with intent to marry such woman or have her married to another, or with intent to have carnal knowledge with her himself, or that another shall have such knowledge, shall be confined in the penitentiary not less than two nor more than seven years." The indictment was based on this statute, and the prosecution resulted in a conviction of the accused.

The evidence shows that the appellant had been living at the house of the father of Myrtle Stubblefield for about three years, in the capacity of farm laborer; that Myrtle was in her twelfth year; that while she was asleep in her bed, just after daylight, the accused approached it, and awoke her by putting his hand under the bedclothes, placed his hand on her hip, and tried to unbutton her drawers, all of which was done against her will. Counsel for appellant, at the close of the evidence for the commonwealth, moved the court to instruct the jury to find him not guilty. The court overruled the motion, and refused to so instruct the jury, to which action of the court an exception was taken. Appellant admitted he did all the complainant said he had done, except trying to unbutton her drawers. During the progress of the examining trial, the appellant was asked why he put his hands under the bedclothes and on her hip. He replied, "You ought to know by me going there." It is contended that the evidence was not sufficient to warrant a conviction of the accused under the statute. The evident purpose of the statute was to punish those who take or detain females against their will for the purpose of having sexual intercourse with them. It creates a greater offense than an assault and a lesser one than rape or an attempt to commit rape. The facts proven constitute an offense under the statute. The word "take," as used in the statute, means "to seize; lay hold upon; to catch." The proof shows there was "a taking" against her will, and that his intent was to have carnal knowledge with her himself was shown by his acts. Besides, his admission on the trial before the justice would make clear such purpose, were a doubt entertained as to what it was. At any rate, the jury had all the facts before it, found him guilty, and the court will not disturb the finding.

It is contended that appellant could not be convicted under the statute, because the complainant was not a woman, as she was only in her twelfth year. We do not think there is any merit in the contention. The word "woman" is used generically in the statute, and embraces every female of the human race. We cannot believe the legislature intended by this statute to protect mature women from the wanton conduct of brutish men, and allow females of tender years to be subjected to their assaults and lascivious carriage.

We perceive no reversible error in the record.

Judgment affirmed.

Ky.App. 1895.



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