
    W. R. Prewitt v. Commonwealth.
    [Abstract Kentucky Law Reporter, Vol. S — 861.]
    Continuance of Trial.
    In view of the facts shown by the opinion in this case, it was held that the defendant was not entitled to a continuance at his trial in order to procure evidence to show that the girl upon whom he committed rape was an unchaste woman.
    APPEAL FROM GRAYSON CIRCUIT COURT.
    April 26, 1884.
   Opinion by

Judge Pryor:

The principal, and in fact the only, ground relied on for a reversal of this judgment was the refusal of the court below to grant the appellant a continuance. The appellant having been charged with the crime of rape, the object of a continuance was to enable the accused to show that the prosecuting witness was an unchaste woman.

We have examined the facts of the record with much care, and the testimony relied on for the defense is conclusive as to the guilt of the accused, although the girl of sixteen may have been so depraved as to yield willingly to the lustful desire of the accused. The unfortunate victim of appellant’s brutal passion is shown to have been scarcely sixteen years of age, without friends or family to protect her and so ignorant as rendered her unable to protest against the assaults of those who, as she says, pursued her for the purpose of accomplishing her ruin. She had left her home with the object of marrying a man by the name of Devine, and the two were attempting to make their way to the residence of the father of the young man in Mercer county under the impression that the marriage could be there consummated. Appellant seems to have learned that the girl and her lover remained all night in the same room at the residence of - near Leitchfield, and finding them the next day at the railroad depot announced to her that he intended to arrest her on the charge of fornication. The two protested that they had not slept in the same bed or had sexual intercourse, and evidently in fear of arrest by the accused left the depot, and started on their way down the railroad. The accused after they left proposed to follow them and have some fun and started in pursuit.

This suggestion was made in the presence of his friend, Durbin, and two or three others whose names are connected with the disgraceful affair, and they followed after Prewitt (the accused). When the latter overtook them he stated that his purpose was to arrest them, ’and when Durbin approached he commenced to write on some paper that he had taken from his pocket and the girl began to cry at what was taking place, believing no doubt that her arrest was inevitable. According to the testimony of the defense the parties, Prewitt and Durbin, had an interview with the girl’s lover, and for the promise of ten dollars he agreed if she was willing that she might gratify the desires of the four men at two dollars and fifty cents each, and the girl consenting she was led off to the woods by the accused and there he had sexual intercourse with her, and when she returned his friend Durbin took charge of her and gratified his beastly lust.

This the girl and Devine deny, the girl stating that it was through fear and against her consent that her ruin was accomplished. She swears that this was the first time that she had ever known a man in that way, and in this statement she is sustained by the accused, who in effect boasted of his success in his having been the first man who had carnal knowledge of this unfortunate, ignorant creature. He proves by Durbin, who from his own statement is an expert in such matters, that, from his long experience, the intercourse he had with this girl of sixteen satisfied him that she was quite common, and in the opinion of the two she was so common that Prewitt, the accúsed, had her arrested and lodged in jail for her lewd behavior with Devine. The annals of mind scarcely produce a parallel to this disgraceful and atrocious assault committed by those in human shape. Under the quirk of the law and with the pretense of ridding the neighborhood of this lewd girl, if the affidavit 'made by the accused is to be regarded as true, these two men threaten her arrest almost in sight of the jail window, gratify their beastly desires and obtain her consent, as is proved in this case, by quieting her fears of imprisonment in the assurance that she will not be harmed on condition that she will submit to the gratification of their animal desires. The horrid deed is accomplished and a jury of the county in which the accused lived has said that he shall be incarcerated in the state prison for ten years at hard labor. No court or jury would under the circumstances lessen or mitigate the punishment, and however impure or degraded this poor girl may be, she is more to be pitied than blamed by reason of her misfortunes, resulting from the atrocious offense perpetrated upon her person by those whose experience from their testimony render them experts in detecting those who are so base as to assail the virtue of poor deluded girls. Deciding this case upon appellant’s testimony alone, this judgment must be affirmed.

H. T. Wilson, for appellant.

P. W. Hardin, for appellee.  