2 Ga. App. 41 | Ga. Ct. App. | 1907
The defendant was convicted of assault with intent to rape. His motion for a new trial was overruled, and he assigns error on the judgment refusing a new trial. The plaintiff in error relies upon three assignments of error, all predicated ■upon the charge of the court.
The decision of the majority of the court in Davis v. State does, not accord with our individual views, and seems to us to be an invasion of the constitutional prerogatives of the jury. We shall, be bound by it, in view of the legal requirement to that effect, as. applicable to eases of rape; but we shall not extend the principle: therein embodied to cases of assault with intent to rape. The dicta of Judge Hale, upon which the decision in the Davis case rests, refer only to cases of rape, and the reasoning is based upon the-necessity for protection of the defendant from that speedy and uncontrollable indignation aroused by as heinous a charge as that of
In our opinion the testimony of the prosecutrix in a prosecution for the offense of assault with intent to rape needs no corrobora- ■ lion. Her testimony alone is sufficient to authorize conviction, if it is credible to the jury. The Penal Code, §991, declares that the testimony of a single witness is generally sufficient to establish a fact. The only exceptions to this rule enumerated in our Penal Code “are made in specified cases, such as to convict of treason or perjury, and in any case of felony where the only witness is. an accomplice; in these cases (except in treason) corroborating circumstances may dispense with another witness.”''
The learned trial judge was right in refusing the request, not -only for the foregoing reasons, but especially upon the ground that the request, as a whole, was not a correct statement of the law applicable to the case. “If a request to charge be not all proper, the court need not give any part of it in charge.” City of Atlanta v. Buchanan, 76 Ga. 585. And, furthermore, the request “was argumentative. Regardless of these two latter defects, and even if the request had been properly framed, the court did not err in refusing to instruct the jury as requested. In the earliest decision of our Supreme Court upon this subject (Camp v. State, 3 Ga. 421) the court laid down the rule as to the testimony of the injured female in eases of assault with intent to rape, and it is controlling until expressly reviewed and overruled. The learned trial judge presented the principle therein affirmed (¿nd which we now follow) with unequalled clearness and impartiality. In the Camp case, above referred to, Judge Nisbet, delivering the opinion, after quoting from Blackstone and his reference to Lord Hale, says: “The degree of evidence which in this case ought to satisfy the jury of the defendant’s guilt depends upon the circumstances of each case, and can not be reduced to specific rule. 3 Chitty, Criminal Law, 572.” . The trial judge left the credibility of the little girl in this case to the jury, and we do.not see, under the ruling in the Camp case, how he could have done otherwise. When Lord Hale wrote: . “If the witness be of good fame, if she presently discovered the offense,” etc., “these and the like con
It is alleged that the court erred in failing to charge upon subject of assault and assault and battery. ' It is well settled where a charge of graver character includes minor offenses, if evidence will justify or require a verdict finding the defendant-guilty thereof, it is-the duty of the judge to instruct the jury to the principles of law applicable to the lesser offense, and that", the defendant may be convicted thereof if in the opinion of jury he be guilty of such desser grade of the same generic offense. This general rule is to be qualified to the extent that the lesser; offense' must either necessarily be included in the greater by a charge in the indictment, or, if it may or may not be, then averments of the indictment describing the manner in which the greater offense was committed must contain allegations essential. to describe the lesser offense. The whole subject is discussed Watson v. State, 116 Ga. 607, 43 S. E. 33, and the cases of Wilson v. State, 53 Ga. 305, Hopper v. State, 54 Ga. 389, Bard v. State, 55 Ga. 319, Trowbridge v. State, 74 Ga. 431, Malone v. State, 77 Ga. 767, Jenkins v. State, 93 Ga. 470, 17 S. E. 693, and Bell v. State, 103 Ga. 401, 30 S. E. 294, 68 Am. St. Rep. 103, are there cited as authority. The jury should in all cases, be instructed that the defendant may be convicted of the lesser offense, where the evidence submitted, under any view thereof, will authorize.
We think, too, that the court erred in the instructions given 'the jury with reference to the defendant’s statement. The 'jury •should have been instructed, especially in this case, that they had the right to believe the statement of the prisoner in preference to the sworn testimony, if they chose so to do. In this particular
Judgment reversed.