176 Ga. 787 | Ga. | 1933
Lead Opinion
Fortunatio Annuneiatio was indicted for the offense
The rulings on the pleas in abatement and on the demurrer to the indictment are not argued or mentioned in the brief filed by counsel for the defendant, and are to be treated as abandoned.
The prosecutrix testified: “During the month of April I was living on Elbridge Drive and going to school at Fulton High, over here at Washington and Fair Street. I met these two men here in Kress’s and McCrory’s on April 3d, I think. I never did really get acquainted with them there. I just watched them play the yo-yo, and heard their names mentioned by some of the girls. Neither one of them talked to me there. I never seen them at any place except there at the store, only the afternoon when I went to their apartment. I went to their apartment only once, that was with Frances Hutcheson. How come me to go there, I was with Frances on Tuesday afternoon, when Ambia Subia walked almost up town with Frances, and told Frances he wanted her to come to the apartment. Frances asked him, ‘You want us to come to the apartment?’ And he says, ‘No, you come to the reception hall.’ Following that invitation, we went up-there the next afternoon, which was Tuesday; and when we got there, the first one who come to the door was Ambia, and he had on an apron and said he was cooking something. And we went to the kitchen, and he says come in there, and Frances says, ‘In your room?’ and he says, ‘Yes,’ and so we went in, and stayed until he come back in there, and he took Frances’ books and laid them down on the dresser; that was Ambia. And Fortunatio was in the next room at that time, reading a paper. And then Fortunatio come to the door and spoke a few words in his own language
Dr. W. A. Arnold testified that he examined the girl about a week after the alleged rape, and found her hymen ruptured. He could
The defendant introduced no witness. He made a statement in which he denied the charge against him.
The evidence was sufficient to authorize the verdict.
The motion for new trial assigns error because the court failed anywhere to instruct the jury that they were to disregard any testimony or evidence ruled out by the court. This ground states the rulings by the court on testimony of Frances Hutcheson, as follows: Q. (by the solicitor-general) : “Following the reception of this note here I first exhibited to you, state whether or not you got any invitation from either of these men.” This was objected to as leading, suggesting, and calling for a conclusion of the witness, and the court overruled the objection by permitting her “to state whether she received an invitation.” “ Q. Frances, did you get an invitation to go any place from either of these men; and if so, state who was there ? A. I got an invitation, and Eosa Mae Clower was present, but nobody else. The invitation was given to me. Ambia asked, me to come to his room. There was nobody there at the time but Ambia and Eosa and me.” On objection the court ruled out what happened when this defendant was not there, but failed to instruct the jury what was being ruled out, and that they should eliminate
The court permitted the witness Frances Hutcheson to testify, over objection that it was irrelevant, what transpired on the day following that on which Eosa Mae Clower was alleged to have been raped by the defendant, as follows: “The day I heard the noise was the second time I was there, and Evelyn Barnett was there with me that day. Ambia and Barnard met us in the hall, and after we went to Ambia’s room, Evelyn Barnett went to Barnard’s [defendant’s] room.” On previous cross-examination this witness had testified, in response to a question by the counsel for defendant: “I went there afterwards, after April 13, I went on the 14th, the next day, and Evelyn Barnett was with me that time; and me and Miss Barnett were in the apartment when the officers came and arrested these boys.” The testimony of which complaint is made was brought out on redirect examination by the State, and was in substance the same as that elicited from the witness by the defendant’s counsel. Its admission was not cause for reversal.
Frances Hutcheson testified, on cross-examination : “In this indictment the 23rd of April, 1932, when the grand jury says I was assaulted, struck, and beaten in that apartment, they are mistaken about that.” The court ruled out this testimony, on objection by the State’s counsel, on the ground that the indictment referred to by the witness, was a different transaction from the one on trial. The ruling was not erroneous.
Ground 5, complaining of the admission of certain testimony “over the timely objection of this defendant,” is .an insufficient as
It is complained that the name of Paul Seymour, a witness for the State, was not furnished to the defendant as one upon whose testimony the charge was founded, and who did not appear before the grand jury. It is alleged that if the defendant had known that this witness was to testify against him, he could have procured impeaching evidence that the witness had entered in the superior court a plea of guilty to the charge of unlawfully entering a house with intent to steal; and that the witness was under charge of larceny after trust, in the criminal court of Atlanta. This witness testified that “those girls would come there at 2:30 and stay there until 5 :30, and I watched them, and any white American would do the same thing.” The court of its own volition directed the witness to “leave that out.” “It is respectfully submitted that the harm such a remark would work had been done; and this, taken in connection with the highly prejudicial and inflammable argument of the assistant solicitor-general, made it almost an impossibility for the court to have cured the harm and injury wrought this defendant by said alleged prejudicial remark on the part of said witness; and had this defendant known the intention of the State to use said witness against him, he would have been prepared to show this witness’s true character to the jury, and it would have affected his credit with the jury.” There is nothing to show that any demand was made for the list of witnesses to be used against this defendant. In Fears v. State, 125 Ga. 739 (3) (54 S. E. 661), this court held: “The failure to furnish the accused or his counsel with a copy of the indictment and list of witnesses, in the absence of a demand therefor, does not constitute a valid ground for setting aside the verdict of guilty.” And see Inman v. State, 72 Ga. 269.
It is complained that the court erred in not declaring a mistrial, because of language used by the solicitor-general in his argument to the jury, as follows: “The United States took over the Phillipine Islands; and why, God only knows. We got a burden when we took over those islands. We have .the Phillipino with us, and can’t get rid of him. There sfiould be some way to get the Phillipinos back, but there is no way to do so.” The court refused to grant a mistrial, but warned the solicitor-general to confine his
Ground 8 is as follows: “Because the court erred in giving the following in charge to the jury: ‘Bape, as defined in our law, is the carnal knowledge of a female forcibly and against her will, and is punishable with death, unless recommended to mercy by the jury, in which event the defendant is to receive the same punishment as for assault with intent to rape, which is not less than one year, nor more than 20 years, at hard labor in the penitentiary. In order to constitute the crime of rape, there must be a penetratipn of the female organ of generation by the male organ of generation. That penetration may be slight or great, but there must be some penetration of the female organ by the male organ in order to constitute the crime of rape. Force is a necessary element to constitute the crime of rape. Such force may be exercised either by physical violence, or by threats of serious bodily injury which overpowers the female and causes her to yield against her will. Whether there was force in either or neither of these waj^s is for determination by the jury from the evidence upon this trial, considering the defendant’s statement and giving it such force and effect as you see fit to place upon it. If you find beyond a reasonable doubt that there was force in either or both of these ways, you would'be authorized to convict, provided you also find the other necessary ingredient exists. If you find there was no force in either of these ways, you could not convict of rape.’ Said charge was not adjusted to the evidence in this case, and was prejudicial to this defendant in that the court told the jury, in substance, that they must find that there was no force in either of these ways before they would be authorized to acquit this defendant, the language of the court being that, ‘If you find there was no force in either of these waj^s, you could not convict of rape.’ And this defendant says that there was no testimony or evidence offered by the State to show that any threats had been made by this defendant or any one else to do ‘serious bodily injury’ in order to overpower the will and obtain the consent of the
t Ground 9 complains because the court charged the jury as follows: “Gentlemen, under our law, all women are presumed to be virtuous until the contrary shall appear. So gentlemen, you are to consider this case on all the facts which have been introduced in the trial of this case, talcing in connection therewith the defendant’s statement; and if you believe this defendant did have carnal knowledge of Eosa Mae Clower at any time in the County of Fulton and State of Georgia, within four years from the time this indictment was found and returned into this court by the grand jury, and that the defendant did make the assault upon the person of Eosa Mae Clower, and did have carnal knowledge of and sexual intercourse with her, a female, forcibly and against her will, as alleged in the indictment, and you believe that beyond a reasonable doubt, you would be authorized to find the defendant guilty of the crime of rape, as charged in the indictment.” This charge is not subject to the criticism urged in this ground, to wit, that the court by said words and language expressed the opinion to the jury as to what had or had not been proved.
The court did not err in overruling the motion for new trial.
Judgment affirmed.
Dissenting Opinion
dissenting. The charge dealt with in the eighth division of the court’s opinion, in so far as it states that “force may be exercised either by physical violence, or by threats of serious bodily injury which overpowers the female and causes her to yield against her will,” was not authorized by the evidence. In the first division of the majority opinion the evidence relied on to sustain the verdict is sufficiently stated. The facts are not identical with those
“In Mathews v. State, 101 Ga. 547 (29 S. E. 424), the girl was 16 years of age. In the course of the opinion it was said by Simmons, C. J.: 'Mathews was indicted for the offense of fornication and adultery and convicted. The facts are set out fully in the of
“In Cheney v. State, 109 Ga. 503 (35 S. E. 153), the defendant was convicted of rape upon a girl 12 years old. The judgment of the trial court refusing a new trial was reversed, because ‘The evidence as a whole was entirely insufficient to establish the guilt of the defendant.’ In the course of the opinion it was said by Little, J.: ‘The main witness for the State was the girl upon whom the rape was alleged to have been committed. While in her evidence she makes a statement of facts concerning the assault, amply sufficient to support the charge, she, at the same time, gives such an account of her actions when she was assaulted and while the offense was being committed as entirely negatives the force of her evidence that the plaintiff in error assaulted her. In relating the circumstances under which the assault was committed, she testified, among other things, that on Sunday morning in July, 1899, her father and mother went to church, leaving her two little brothers and her sister, nine years old, with herself at home; that previously to this time she had a conversation with the plaintiff in error, who had told her that he was coming to the house on that Sunday and would bring her a pound of candy; that the accused was near the house when her parents'left, and she watched them until they got out of sight; that the accused then came to the house, and caught her by the arm; that she jerked loose and ran up-stairs, and he followed her; that in the room up-stairs he asked her to have intercourse with him; that she refused, and ran down-stairs into a little room, when he caught her, overpowered her, threw her on the floor, and violated her person. Witness resisted and screamed, and told her sister to scream and to tell her brother, who lived near, to come and make the accused leave. Had the witness stopped here, her evidence would have been sufficient to make a prima facie case; but, as her evidence appears in the brief, she further testified that the ac
“If the female consent to the' sexual intercourse, it is not rape, and she may express her consent by her conduct at the time of the intercourse. Where her conduct is such as to imply assent, no rape is committed, even though the female may verbally proclaim unwillingness to engage in the act of intercourse. Another part of the offense is force upon the part of the accused, exercised against the female. In Vanderford v. State, 126 Ga. 753 (55 S. E. 1025), it was said that 'Force is an element of the crime of rape, but it may be exerted not only by physical violence but also by threats of serious bodily harm which overpower the female and cause her to yield against her will.’ In the course of the opinion this court quoted with approval from Bailey v. Commonwealth, 82 Va. 107 [3 Am. St. R. 87], where it was said: 'The law requires that the unlawful carnal knowledge shall be against her will. She must resist, and her resistance must not be a mere pretense, but must be in good faith. She must not consent. If she consent before the act, it will not be rape. But as to this consent, we may observe that it must be a consent not controlled and dominated by fear. . . A consent induced by fear of bodily harm or personal violence is no consent; and though a man lay no hands on a woman, yet if by
“In the case under consideration, the injured female, being the stepdaughter of the accused was nearly fifteen years of age and over the age of consent, as hereinbefore stated. She appears from her testimony to have been of average intelligence, and fully competent to comprehend the nature of the act. Her testimony is set out at length in the statement of facts, and it is unnecessary to repeat it here. It is sufficient to say that she did not, at the time, utter a word of protest or attempt any act of resistance, nor did the ac-