Lewis v. State, No. 3818

No. 3818 | Ga. | Nov 27, 1923

Dissenting Opinion

Atkinson, J.,

dissenting. Where a charge of an offense of graver character includes (without additional averment) a minor offense, it is the duty of the trial judge to instruct the jury upon the iaw applicable to the lesser offense, where the evidence, under any view thereof, will authorize a conviction of the lesser offense. Moore v. State, 151 Ga. 648 (5) (supra). An indictment which alleges that the defendant did “unlawfully and with force and- arms have carnal knowledge of ” a named person, “ a female, forcibly and against her will, contrary to the laws,” etc., charges the offense of rape and includes the minor offenses of assault with intent to commit a rape, assault and battery, and assault. Johnson v. State, 14 Ga. 55; Speer v. State, 60 Ga. 381; Moore v. State, 151 Ga. 648, 662 (supra), and cit. An indictment for assault with intent to commit a rape may charge that offense in language that will not include a battery (Goldin v. State, 104 Ga. 549, 30 S.E. 749" court="Ga." date_filed="1898-05-25" href="https://app.midpage.ai/document/gilreath-v-state-5568611?utm_source=webapp" opinion_id="5568611">30 S. E. 749), but this does not conflict with the principle stated above. If all of the evidence proves the completed offense of rape as charged in the indictment, such evidence would not support a verdict for the lesser grades of offense. Penal Code (1910), § 19; Kelsey v. State, 62 Ga. 558; Johnson v. State, 73 Ga. 107 (2); Harris v. State, 101 Ga. 530; Welborn v. State, 116 Ga. 522; Canida v. State, 130 Ga. 15; Moore v. State, supra. But where, on the trial of a defendant under an indictment of the character mentioned above, the evidence of the injured female, though contradictory, was sufficient to establish the technical offense of rape, and there was testimony delivered by other persons who were present at the time it was contended by the alleged injured female that the crime was committed, which did not support the charge of rape, but was sufficient to support a verdict for an assault with an intent to commit a rape, or a verdict for assault and battery, or a verdict for a bare assault, it was erroneous for the judge while instructing the jury to omit, without request, to charge the law applicable to these minor grades of offense. In this case the error in omitting to charge the law relating to the minor grades of offense was sufficient to require a new trial.

No. 3818. November 27, 1923. J. B. Hoyl, for plaintiff in error. George M. Napier, attorney-general, ~W. EI. Flournoy, solicitor-general, Seward M. Smith, assistant attorney-general, and O. F. McLaughlin, contra.

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Lead Opinion

Hines, J.

1. The charge being rape, and the evidence, if credible, showing conclusively that the carnal connection was complete and that the offense of rape was actually perpetrated, the court did not err in failing to charge the law applicable to assault with intent to commit rape, or assault and battery, or a mere assault. Kelsey v. State, 62 Ga. 558; Johnson v. State, 73 Ga. 107 (2) ; Harris v. State, 101 Ga. 530 (29 S.E. 423" court="Ga." date_filed="1897-11-15" href="https://app.midpage.ai/document/jones-v-state-5568127?utm_source=webapp" opinion_id="5568127">29 S. E. 423); Welborn v. State, 116 Ga. 522 (42 S.E. 773" court="Ga." date_filed="1902-11-12" href="https://app.midpage.ai/document/welborn-v-state-5572089?utm_source=webapp" opinion_id="5572089">42 S. E. 773) ; Canida v. State, 130 Ga. 15 (60 S.E. 104" court="Ga." date_filed="1908-01-30" href="https://app.midpage.ai/document/canida-v-state-5576155?utm_source=webapp" opinion_id="5576155">60 S. E. 104) ; Moore v. State, 151 Ga. 648 (108 S.E. 47" court="Ga." date_filed="1921-06-18" href="https://app.midpage.ai/document/moore-v-state-5583592?utm_source=webapp" opinion_id="5583592">108 S. E. 47).

2. The evidence of the female alleged to have been raped shows that carnal knowledge of her by the defendant was complete, and was sufficient to have authorized the jury to find that she had been actually raped by the defendant, but did not authorize a finding of a mere assault with intent to commit rape, or a mere assault and battery, or a mere assault. The other evidence introduced on the trial would not have authorized the jury to find that he did not have complete carnal knowledge of the female. It corroborates and does not contradict the testimony of the female, that such carnal knowledge was complete. For this reason the court did not err in failing to charge the law applicable to any of the above lesser offenses.

3. The charge: “How, gentlemen, I charge you this principle of law: The accused could not be convicted upon the woman’s testimony alone, however positive it may be, unless corroborated by circumstances,” was not error, as contended, on the grounds that it “ is inaccurate and misleading; it fails to refer to the testimony 'of the one assaulted; it fails to explain what circumstances are referred to, and does not explain what circumstances, facts, testimony or evidence will be' sufficient corroboration of the facts and evidence given by the one assaulted; that such reference to the ‘ woman’s testimony ’ is confusing and misleading, because several witnesses who testified for the State were women; and because it does not charge the correct rule of law that the defendant cannot be convicted of rape upon the testimony of the person assaulted alone, unless her testimony is corroborated by other evidence.”

4. There is sufficient evidence to support the verdict.

Judgment affirmed.

All the Justices concur, except