*1 right of denying jury the effect to convict the defend- manslaughter, manslaughter expressly ant of since was not charged judge fully charged the indictment. subject manslaughter. elsewhere There no merit this contention. Special ground complains because of following occur- rence. The returned to the courtroom for additional information, following when the occurred: “The Court: What you do have? Judge, The Foreman: we want to if know we mercy recommend case, were to they give subject or life, pardon. would he be The Court: Mr. Fore- you will like man, you I answer this: I don’t want think being discourteous, I am is matter you but that are not concerned with. The Foreman: The reason I asked that —I just it, don’t wanting know how ask but we were to know prisoner would the that time. make The Court: The Court permitted is unable that. to answer It is not law. The Foreman: is all.” Well, that definitely
This court has
settled
quеstion.
Had the judge
given any answer other than the one
did,
he would have
Thompson
error.
committed
See
v. State,
(47
under was not any review error for reason assigned.
Judgment All the Justices concur. affirmed. Argued September 14, 1959 Decided October Rehearing denied November 4, 1959. Vickers plaintiff
J. Neugent, errоr. Eugene Cook, Rubye Attorney-General, G. Jackson, Deputy Assistant Attorney-General, contra.
20586. JOHNSON v. THE STATE. Justice. Nathaniel Johnson, negro, indicted Candler, raping the offense of a named white woman. He any was convicted without recommendation, be electrocuted. sentenced to He moved a new trial on general adding later grounds, the usual amended motion special excepted four grounds, denying judgment motion. Held: amended grounds general
1. The of the motion for new are without merit. The evidence is brief statement of it voluminous, but a Talmadge shows the facts: victim worked following *2 Memorial city Augusta. She hos- Hospital of left the pital on January 27, 1959, p.m. purpose alone for the in her going getting of home. she which was car, While parked hospital’s parking lot, the accused drove his car up stopped hers, immediately got and to rear of out just of kill her car, his seized to if she did her, and threatened get into car. and feet got away his from him ran a few She caught screaming help. At before he her while she was stop he that time if she again threatened to kill her did screaming. her dragged car, picked her back to his He then her up аnd her in front told him take threw seat. She to replied, money alone, and her he “I want leave but don’t closing the door of her money, you.” I want While he was got she of ran to the lawn of the car, out his car and where, dragged and her back again he throat car, to hand around her trying get his аt the time to his again her and stop screams. loose She broke slapped he caught down, repeatedly but her ran, her, knocked up her her to or he would kill face, in the and told shut put his placed pinning down, He his her her chest, knee on kept bearing in her down hand and throat into trachea screaming. the time closed it, telling quit on her He at get she her nostrils other since could not hand, with his and consciousness, regained consciousness. When she she lost air, moving floorboard of a realized back that she was he knock Every up, automobile. time she tried to raise if she not behave. her kill her did down, telling her he would opened the managed pushed over and get the front seat She the car when he reached half-way door; out managed her drag body hair, clothes, and over, and her her down He into the door. threw back the car and close him to kept begging front She on seat. the floorboard of the going to vomit. and was her nauseated up, let County, Augusta some distance out He drove opened door, road, car on dirt finally and clothing off. He said her all of her pushed and tore out always they because have suсh had “wanted a woman white pretty skin.” force have carnal white He then tried against her the order of knowledge and connection with (in constituting way Code 26-5901 nature defined § sodomy). following his failure Immediately the offense of accomplish sexual intercourse with her act, had put fоrcibly against her He then had her some will. her all He clothing on, completely that was not unusable. drank can something car, out of a which he had threw bottle, the can away, got whisky from under the front seat, it, drank some her the time if she asked replied drank. not, Sunday She that she did that she awas school teacher, boys. and that her class consisted of several car, pinned against He took her to back of the again forcibly fender, the back intercourse with her had against will. After that he forced back into car, wiped and with torn blouse blood the back upholstery, whеre bled. He the car she had started and told he did or her; not know what he could would do with “burn once”; driving he could not and that while *3 Augusta, ponds back toward down say he would slow at and begged go he could release her. to let and She her promised family him that she her tell occur- rencе. then alley Augusta, He billfold, drove an took her telephone her name, address, number, and wrote her hus- and piece band’s paper put pocket name down on in his a and pen. with her bill He handed back her a five-dollar kept change. billfold, was in her her After a exacting but promise report from her affair, that she would he car- back ried her to her car on the her property, telling home. got home, that would follow her When she her thirteen-year-old child, son, waiting up her, oldest and since her time working husband was at that South Carolina, immediately pastor her He, called at 1:25 a.m. daughter wife, and their came once to- her home at after her sister her calling husband, and also came. As who soon they arrived, -them had occurred. Her she told what sister condition, testified that she was a shocked had bruises and body, scratches all over her and carried to then hospital. police gave were called from there and she description them her assailant and he was driving. During night, the same the car which she had de- scribed was found front of the home of the accused. He was taken into custody, and a few hours later she piсked him out of line-up men seven similar himto in size and dress. She positively identified him as the person who raped had Pictures taken the victim immediately after placed the assault and evidence without objection show severe scratches and several bruises on her face, throаt, head and testimony and the State shows clothing badly bloody. that torn and Dr. W. F. Pryor, a the State, testified that he examined alleged victim soon after the that rape, many and she had severe face, bruises on her neck, particularly her legs, about her thighs, bleeding. all which been had He testi- fiеd deeply that he was concerned in her swelling about neck which from resulted the bruises and accumulation of blood under skin part body that of her and the possibility of injuiy such an her air completely blocking pas- sage. investigating arresting officers testified that them he got night first home on the of the assault 10 o’clock during and remained there the rest of the night, and that he not loaned had his car anyone night. Later had he said that he loaned his car night soldier a named Gordon. Still later he Fort picked up person alleged admitted that he had to have raped hospitаl; forced her into at the that he his auto- mobile; that screaming hold of his horn blowing button horn; and was that he reached into the pulled car and with from away both hands choked hom, drove away; persuade intercourse that he tried to have him; finally she, time, consent, refused to some consented; and intercourse with her. He had investigating later went officersthe with and showed the in Richmond where he said the intercourse occurred. *4 Special grounds complain 2. 2 admission of cer- about the Bailey, Mrs. a for testimony given
tain C. E. witness as solicitor-general made State, thе of remark the while a grounds alleges stand. of the witness One the objection pleaded it an that was not erred, that the court over the allowing the the in witness against accused, in indictment during August of an on her testify he made assault of in her car in a sitting front 1956 while she was that, her; and Georgia; that choked Augusta, business he said, money, started when she it you.” objection, this Over money, I want “I don’t want in evidence. testimony the not allow erroneous to was in refusing trial judge erred alleges that the ground other solicitor-general therefor, motion when the grant mistrial on prove presence jury hе wanted in the making while accused, that the Bailey, witness, Mrs. the as expression the the oil her used same assault the namely, case, in this the victim assaulting used while one he you.” In circumstances of want the money, want I “I don’t improper; complained the was case, remark this denying contended, true, err, the being this court did as mistrial. the defendant’s motion alleges that the Special ground giving erred in fol- court charge jury: "... charge lowing you, to> the I good or knowledge, motive, intent, faith, or other matters bad upon person’s state of dependent mind are as involved material criminal element offense with which de- evidence of the defendant’s conduct with charged, fendant is time, to similar transactions about the is reference same ad- jury only they for the as missible consideration insofar may to demonstrate state of defendant’s mind on tend subject they involved. illustrate or not is a Whether solely you evidence question gentlemen jury. Any any with reference other transaction of the defendant in its consideration as to the should be limited to the subject of the defendant’s mind reference state por- against The criticism involved the case on trial.” charge misleading, tion is that it was was illegally confusing, based ad- and that it was on evidence subject mitted. to' criticism. is Special alleges charging ground judge that the erred guilt. of confessions of not con- law given abstractly incorrect, tended the instruction urged not authorize such a the evidence did but it accused, shows: The charge. this, the evidence Respecting was a volun- prior the State contends statement which fully advised that tary guilt, confession of picked line-up of a raping person who- him out George Mutimer, Deputy men. Sheriff of other Chief of six testified: lie and а *5 charge against talked to the accused him, about the at the county jail during one hour after morning alleged rape. During most of conversation, he and the accused were alone. related him detail The accused to approached alleged he party hоw his to have been victim, raped T'almadge on Memorial Hos- parking lot of the stating stranger since he had never pital, to him struggle before of his with seen He told the witness he her, getting force used her into his car, how she the hom blowing got car his when in it, and he with both of her, pushed how his hands chokеd blowing back and from his horn and from screaming. then The accused he carried her to a place on off a dirt road which leads from the New Savannah place girls. Road—a to which he had carried other At this her for quite trying get he talked to a while to to to to him; give consent hаve intercourse with she refused get consent; said, such and that she later “Go ahead began over with.” He said that he then have intercourse her; her but before get he finished she made him off pond, ran some bushes near got out into her skirt picked up tearing where at the — brought her time, and bаck to the car. He said that he then brought her back to the property, her car parked argued and let her out of his car. that the state- is by the made Mutimer ment does not guilt confession of offense charged against amount to a words, because of the “Go get ahead it over argument persuasive. This is with.” Consent to sexual intercourse violence which obtained force and does rape. the sexual Melton v. prevent being act one (191 91). (3) Ga. E. Consent sexual State, 184 S. through present and immediate fear intercourse obtained injury equiva- to the female involved bodily serious lent consent act intercourse consum- all, of no and an circumstances cannot be said to have mated under such v. of the female. committed with the consent Vanderford (5) (55 1025). just cited, In the case E. Ga. 753 S. alleged that the court motion for movant new erroneously specified portions two necessary element of force respecting instructed them unanimously there it was rape, the crime of constitute informed the charges substantially of these held: “Both of rape, of the crime necessary element force was violenсe, but physical might only by be exerted bodily harm, fear of serious causing also threats thereof yield against overpowered caused the female and *6 906, 7, the author law.” In 44 Am. Jur. her will. This § accordingly not says: necessarily relative. It is “Resistance illogical requirement necessarily apрly for courts to modify vigorous cases, most resistance common degrees peculiar circumstances, and to vaiying exceptional cases, cases. apply refuse In all parties to the surrounding circumstances and conditions in determining transaction are to be сonsidered whether ade- female.” quate authority And as resistance was holdings rape for this statement, cases from several jurisdictions employed fe- are cited the force directly male’s consent to sexual were involved. act Since case evidence authorized a the law ground the motion is without guilt, confessions merit. Judgment except All the concur, Wyatt, J., Justices P. affirmed.
who dissents.
Argued September 9, 14, 1959 Decided October 19 5 9
Rehearing denied November plain- Barton, Cooper, Lester, R. William Jack L. James L. tiff error.
George Eugene Hains, Solicitor-General, Attorney-Gen- Cook, Rubye Deputy Attorney-Genеral, G. Assistant eral, Jackson, contra. rulings Justice.
Wyatt, Presiding I dissent di- judgment of affirmance. 2 and 3 and from the visions BUTLER al. v. et GIBBONS. recites order over- exceptions Justice. The bill that the Head, (upon ruling petition the demurrers amended assigned) May 7, 1959, error is and this ruling entered on judge’s certificate supported by recital is record. The trial