153 Ga. App. 465 | Ga. Ct. App. | 1980
Henning was convicted in the Superior Court of Columbia County of carrying away a child against the will of the child’s parent; two counts of kidnapping; aggravated sodomy, rape, and child molestation.
Shortly after noon on January 27, 1979, Henning picked up three young girls, ages 12, 11 and 2, on the pretext of giving them a ride home from the grocery store. Instead of taking them home, he drove around and
Henning testified that he took the girls with him against their will, that he did not have the parental consent to take the two-year-old girl and that he raped the 12-year-old girl. He denied fondling the 11-year-old girl, and denied tying the girls’ hands.
Appellant enumerates seven errors, four of them relating to the examining doctor’s testimony and pictures of the vaginal area used to demonstrate injuries to the victim of the rape. He also contended that all evidence relating to penetration, force and the results thereof should have been excluded pursuant to his motion; that the court erred in failing to give a requested charge as to what force was referred to in the indictment; and in directing the doctor to leave the picture of the vaginal area "on the stand, for the jury.”
1. These enumerations are all without merit. As to evidence of force and penetration, these are two essential elements of the offense of rape. Code Ann. § 26-2001. If the state desires to convict a defendant of forcible rape, even though the victim is under 14 years of age, it must prove the element of force by acts of force. Drake v. State, 239 Ga. 232, 233-234 (236 SE2d 748) (1977). Thus, it was proper to permit evidence relating to penetration and the amount of force used. Further, the testimony of the doctor corroborated the testimony of the victim and also related
2. As to the requested charge by Henning concerning the force referred to in the indictment, such a charge is not applicable in the instant case, as the force used to penetrate the 12-year-old girl was obviously the same force used to commit the rape. A review of the injuries to the vagina of the victim authorized the jury to infer the victim’s resistance was overcome by force, as no female would fail to resist the cause of such severe injury. Thus, it was not error to refuse to give the requested instruction.
Judgment affirmed.