Kirby v. Commonwealth

Affirming.

This appeal is from a judgment convicting the defendant of detaining a female against her will, as denounced by section 1158 of the statutes.

It is insisted that the court erred in not directing an acquittal because of the failure of the prosecuting witness to expressly state that the detention was against her will; but this was sufficiently proven by her recitation of the circumstances, and especially by her statement that she threatened to tell her father if defendant did not release her, and that he thereupon desisted.

It is true, as urged, that the court erred in permitting the mother of the prosecuting witness to state that her daughter informed her of the detention shortly thereafter, since the rule admitting such evidence in prosecutions for rape is not applicable in cases such as this. Douglas v. Commonwealth, 68 S.W. 1107, 24 Ky. L. R. 562; Gravitt v. Commonwealth, 184 Ky. 429, 212 S.W. 430.

But this error was not prejudicial here, since the prosecuting witness was not only permitted to so testify without objection on her direct examination, but was cross-examined at length with reference thereto by counsel for defendant.

Other objections to the evidence are, in our judgment, without merit.

The final complaint is that the court erred in failing to give an instruction upon assault, but this is not true, since there was no evidence of an assault other than with the intent charged in the indictment. Paynter v. Commonwealth, 55 S.W. 687 21 Ky. L. R. 1562.

Finding no error prejudicial to appellant's substantial rights, the judgment is affirmed.