Lee v. State
197 Ga. 123
Ga.
1943
Check Treatment
Jenkins, Presiding Justice.

1. Undеr the established rule in this State, the penetration of the female sexual organ by the sexual оrgan of the male, which is necessary to constitute rape, need be only slight; it is not necessаry that the vagina shall bp entered or the hymen ruptured, but an entering of the anterior of the organ, known as the vulva or labia, is sufficient. Morris v. State, 54 Ga. 440, 441; Ravenel v. State, 153 Ga. 130 (2) (111 S. E. 643) ; Hall v. State, 29 Ga. App. 383 (1-a) (115 S. E. 278) ; 44 Am. Jur. 903, § 3; 52 C. J. 1015, § 24. A compliance with this element of the statute was sufficiently shоwn by testimony of the victim, fourteen years of age, as to an interior injury, soreness, and pain, with testimоny of the examining doctor that, ‍‌‌‌​‌‌​‌‌​​​‌​‌​​‌​​​‌‌‌‌‌‌‌​​​‌​​​‌​‌‌​‌​‌​‌​​‌‍although there had been no penetration through the hymen into the vagina, he found an abrasion in the mucus membrane “on the lower fold of the vagina,” which in his opiniоn “would require some slight penetration of the vagina to cause.”

*124 2. Assuming that it is still the rule, as held by a majоrity of the Justices in Davis v. State, 120 Ga. 433 (48 S. E. 180), that there can be no conviction of any rape unless the testimony of the female is corroborated— even though the only express statutory provision to that effect, as contained in the act ‍‌‌‌​‌‌​‌‌​​​‌​‌​​‌​​​‌‌‌‌‌‌‌​​​‌​​​‌​‌‌​‌​‌​‌​​‌‍of 1918 (Ga. L. 1918, p. 259; Code, §§ 26-1303, 26-1304), has been held to apply only to eases of intercourse with the consent or acquiescence of females under the agе of fourteen (Griffith v. State, 176 Ga. 547, 168 S. E. 235), and cit., — in all cases where corroboration is required, “the corroborative evidence need not be of itself sufficient to convict the accused,” and “the quantum оf corroboration necessary,” except where as in the Griffith case it is plainly lacking, “is left entirely to the jury.” Wright v. State, 184 Ga. 62 (190 S. E. 663) ; Suber v. State, 176 Ga. 525 (2-a), 533 (168 S. E. 585) ; Smith v. State, 77 Ga. 705 (2-a), 713.

In the instant case, the testimony by the mother and the father of the girl as to her complaint and accompanying acts, and testimony by the physician who examined her two or three days after the attack and found the injuriеs stated, together with the other facts and eireum- ' stances hereinafter stated, afforded ample corroboration. The two-day delay of the girl in telling her parents of the attack could not be taken as a matter of law to have impaired the credibility of her testimony or the force of the corroborative evidence, in view of her youth, the circumstances оf the attack by the negro assailant, breaking into her home while she was asleep and her рarents were away, ‍‌‌‌​‌‌​‌‌​​​‌​‌​​‌​​​‌‌‌‌‌‌‌​​​‌​​​‌​‌‌​‌​‌​‌​​‌‍seizing her and threatening her with a pistol; and her explanation that, aftеr this defendant told her, “Down here they don’t treat the negroes right, but up there this happens all the timе,” he said, “If you ever tell this to any one, I will break every bone in your body — that just scared me to deаth, and the fact that this negro had the pistol on me frightened me also;” and that she had been afrаid to make a report sooner to her mother, because the defendant had said that “if I tоld that, he would be back some way and he would know it.” As to similar cases of sufficient corroboration, and of slight delay in reporting an attack because of fear or other strong reasons, see Bennett v. State, 102 Ga. 656 (29 S. E. 918) ; Pylant v. State, 191 Ga. 587 (4) (13 S. E. 2d, 380).

3. The proof of identity of the defendant as the perpetrator of the crime was sufficient to authorize the verdict of guilty, without a recommendation. 'There was testimony by the girl that thе attack occurred near a light, and she was positive that the accused was the man who made the attack; and this evidence was corroborated by testimony of others that the defendant had pawned a pistol, and had been in possession of a watch that struck the time, both of which belonged to the girl’s father and had been taken from her home following the attack, аnd which were recovered a few days later, and were in evidence at the trial.

4. There is no merit in the only special ground, excepting to the introduction of testimony by another young womаn that about three weeks before the crime charged, in the same general section оf the city but at ‍‌‌‌​‌‌​‌‌​​​‌​‌​​‌​​​‌‌‌‌‌‌‌​​​‌​​​‌​‌‌​‌​‌​‌​​‌‍a considerable distance from the scene of the later offense, a like crime was committed on her by a negro man, who held a knife to her throat, and whom she positivеly identified as the defendant. Irrespective of

*125 No. 14742. November 29, 1943. G. G. Smith and. A. G. Smith, for plaintiff in error. T. Grady Head, attorney-general, John A. Boykin, solicitor-general, Quincy 0. Arnold, Durwood T. Pye, and L. 0. Groves, assistant attorney-general, contra.

whether or not this testimony was admissible under other exceptiоns to the general ‍‌‌‌​‌‌​‌‌​​​‌​‌​​‌​​​‌‌‌‌‌‌‌​​​‌​​​‌​‌‌​‌​‌​‌​​‌‍rule that an offense different from the one charged cannot be proved (see Barkley v. State, 190 Ga. 641 (2), 10 S. E. 2d, 32, and cit.; Wilson v. State, 173 Ga. 275 (2), 160 S. E. 319), still the testimony was admissible, under the rule that “where the defendant . . exercises the right of mаking a statement not under oath, such statement may be contradicted, by testimony as to the facts which it narrates ” (Camp v. State, 179 Ga. 292, 175 S. B. 646), where the court, after excluding such testimony before the defendant made his statement to the jury, admitted it in rebuttal of the statement then made, “I did not do either one of the crimes which they havе got laid to me.” Although the other charge thus referred to was not more particularly indicated by the defendant, the crime described by the witness was the only one which the record shows had been previously mentioned in the trial. See Sisk v. State, 182 Ga. 448 (3), 452 (185 S. E. 777) ; Johnson v. State, 186 Ga. 324 (4), 334 (197 S. E. 786).

Judgment affirmed.

All the Justices concur.