Camp v. State
175 S.E. 646
Ga.
1934
Check Treatment
Bell, J.

By the act of July 31, 1918 (Ga. L. 1918, p. 259), it was made “unlawful for any person to have sexual or carnal intercourse with any female child under the age of fourteen (14) years, unless such person shall have previously become lawfully married to such female child.” The act further declared that any person violating ‍​​​​​​‌​‌​‌‌‌‌​​​​​​‌​​‌​​‌​​​​‌​​​‌‌​‌​‌‌​‌​‌‌‌‍its provisions shall be guilty of rape, and on convictiоn shall be punished as therein stated; “provided, however, that no conviction shall be had for said offense on the unsuрported testimony of the female in question.” The defendant was convicted of violating this law; and a new trial being refusеd, he excepted.

The defendant stated to the jury that hе had “never had any inclination to run after women,” and had “nеver lived on the immoral side of life.” The court did not err in allоwing ‍​​​​​​‌​‌​‌‌‌‌​​​​​​‌​​‌​​‌​​​​‌​​​‌‌​‌​‌‌​‌​‌‌‌‍the prosecution to rebut this statement by the testimony of a physician tending to show that the defendant was recently afflicted with the disease of gonorrhea. Doyle v. State, 77 Ga. 513 (2); Shropshire v. State, 81 Ga. 589 (8 S. E. 450); Goolsby v. State, 133 Ga. 427 (2) (66 S. E. 159); Josey v. State, 137 Ga. 769 (74 S. E. 282); Barnes v. State, 24 Ga. App. 372 (4) (100 S. E. 788).

Arthur Clay, a police officer, testified as follows: “It was reported around town that there was some gonorrhea around town. I went ‍​​​​​​‌​‌​‌‌‌‌​​​​​​‌​​‌​​‌​​​​‌​​​‌‌​‌​‌‌​‌​‌‌‌‍to see Trixie [Elsie Brogden, the person alleged in the bill of indictment to have been raped by the defendant], then in jail. *293I аsked her if she had had gonorrhea, and she said she did not know whether or not she had it. I asked her if she had had anything to do with any men, and she said she had.” This evidence was objected to uрon the ground that it was irrelevant, immaterial, and hearsay. Since the female testified ‍​​​​​​‌​‌​‌‌‌‌​​​​​​‌​​‌​​‌​​​​‌​​​‌‌​‌​‌‌​‌​‌‌‌‍as a witness that she had had intercourse with several men, and also testified without objectiоn to having made a statement to this effect to the police officer, the admission of such testimony of the officer, so far as it related to intercourse, was apparently not cause for a new trial (O’Shields v. State, 55 Ga. 696; Lovett v. State, 60 Ga. 257 (4); Hixon v. State, 130 Ga. 479, 61 S. E. 14); but the same can not be said of the other portions of the statement, relаting to the prevalence of gonorrhea and the question of whether the female was afflicted therewith. The testimony as to these matters was not only subject to the objections made, but, since it indicated that the female, a mеre child of 13 years, was suspected of having gonorrheа, this evidence was calculated to incense the jury against any person who might be charged with having had ‍​​​​​​‌​‌​‌‌‌‌​​​​​​‌​​‌​​‌​​​​‌​​​‌‌​‌​‌‌​‌​‌‌‌‍intercoursе with her, and thus tended to prejudice the defendant’s cause. Especially is this true in view of the evidence referred tо in the preceding paragraph 1, which, though subsquently admitted аnd not. itself subject to objection, could have accentuated the prejudicial effect of the hearsаy testimony, just as some other subsequent occurrence might render an error harmless. For the reasons stated, the cоurt erred in refusing to grant a new trial. Lowe v. State, 97 Ga. 792 (2) (25 S. E. 676); Tison v. State, 125 Ga. 7 (2) (53 S. E. 809); Bishop v. State, 125 Ga. 29 (53 S. E. 807).

Since a new trial must be ordеred for the error pointed out in the preceding division, nо ruling is made as to the sufficiency of .the evidence to support the verdict.

Judgment reversed.

All the Justices concur. Bussell, C. J., concurs specially.