31 S.E.2d 85 | Ga. Ct. App. | 1944
Lead Opinion
The evidence authorized the verdict; the special assignments of error are without merit; and the denial of a new trial was not error.
2. The defendant contends that the indictment, charging an assault with intent to rape, so describes the manner of the commission of the offense as to contain allegations essential to constitute the lesser offense of an assault and battery; that the evidence would consistently support a verdict for either offense; and that, therefore, it was reversible error for the trial judge, without request, to fail to charge the jury, with reference to this lesser offense. See Barton v. State,
3. "After verdict, in passing upon the motion for a new trial, that view of the evidence which is most unfavorable to the accused must be taken, for every presumption and every inference is in favor of the verdict." Vandeviere v. State,
4. "The law allows [the trial judge] to refuse or grant new trials in the exercise of a legal discretion, but it does not give this court any discretion in the matter. It can only grant new trials when errors of law have been committed, or when the trial judge has abused his discretion in refusing a new trial."Smith v. State,
5. The record discloses that the evidence for the State, if credible and believed by the jury, was sufficient to support the verdict, and this court can not disturb the judgment of the lower court refusing a new trial on the general grounds. Puckett v.State,
6. The evidence supports the verdict; and the same having received the approval of the trial judge, and nothing being shown in *524 the motion (the special grounds of which are dealt with above) to justify a new trial, the
Judgment is affirmed. Broyles, C. J., and Gardner, J., concur.
Addendum
The defendant in his motion for rehearing contends that we did not specifically rule on special grounds 4 and 5 of his motion for a new trial. These grounds are as follows: (4) "Because the evidence was lacking to establish an assault with intent to rape in that it did not show what is meant by private part, private parts, or privates." (5) "Because the evidence fails to show that the defendant took out his penis or that he attempted to use his penis on or in the vagina of the prosecutrix." The alleged victim, an eleven-year-old girl, testified in part as follows: "I went with him into the woods that afternoon. Mr. Brown and myself only were present. We went over a hill back of the house, then we went up another hill. We went near about to the end of daddy's line, which was out of hollering distance from the house, and where nobody could hear us. There was no one back there in that section who could hear us at all. I was walking along and all at once he grabbed me and hugged me up and told me he wanted to love me and threw me on the ground and ran his finger up. . . He threw me on the ground, then he got up and unbuttoned his pants and he got his private part and tried to connect it with me. He laid me upon the ground and took my legs and pulled my pants apart. Then he got up and pulled out his private part and tried to touch my private part and I wiggled till I got loose from him, and I went on doing it — kept on till I got away from him and I ran down the hill and through a swamp and went home. I went straight home and when I got there I told my mother about this. . . My father didn't tell me anything about ruination. I knew what the word `ruination' in school. My mother told me what `connecting' was. `What do you mean by, "They have told you several things about this that cleared up the situation in your own mind?"' They didn't use `ruination' to me. They did use `rape' and `assault,' and `assault with intent to rape,' or `attempted rape.' Prior to this time I didn't know what constituted my private parts, and had never heard the word used. That was told me." *525
We specifically rule that special grounds 4 and 5 of the motion for a new trial are not meritorious.
Rehearing denied. Broyles, C.J., and Gardner, J., concur.