*1 abandoned. All the Justices
Judgment affirmed. J., in the judgment who concurs only. August
Submitted Thomas,
Grace W. Johnson, Attorney, Walker P. Hasty, Fred M. District Jr., District Assistant Oakley, Lois F. Attorney Assistant General, for appellee.
29975. McFALL v. THE STATE. Presiding
Undercofler, found on an Larry Donald McFall was him He was He sentenced to serve ten prisoñ. to this court. appeals moved to the certain appellant him and a Jackson-Denno hearing
statements 908)) 1774, U. LE2d was held to S. contended determine their voluntariness. at that he that his was intoxicated and hearing was obtained after he was promised written confession him with kidnapping. that state would
The record shows that the victim went with the police and identified him appellant’s apartment officers assailant; that he under placed arrest and af- informed that he rights, his constitutional he understood his firmatively rights; indicated that that he stated to the officers that wanted victim to him tell him he raped look and that straight her; did, that the and the appellant crying victim started stated, her”; "I did it... raped immediately thereafter, he asked the officer if it would interrogating go easier on him if he told him he the truth. The officer told could make no to him but inform the promises district He that he had been attorney cooperative. about what statement he make a written if would
asked The officer he would. he said that night occurred alcohol on odor of had a faint the appellant testified well; he talked on his feet and steady him but he was him and also told him of penalty explained statute; that he did not tell *2 if he signed be statement. suppress to the motion overruled
The trial court
58(209
State,
SE2d
v.
233 Ga.
In Johnson
the confessions.
629)
credibility deter-
said: "Factual
this court
after a sup-
by
minations of this sort
courts
accepted by appellate
must
pression hearing
erroneous,” citing
are clearly
determinations
unless such
618)
(92
619, 30 LE2d
It
that there is no merit
in the
argument
follows
have been sustained.
the motion to
should
trial court erred
contends that
that when an act
request
state’s
of fourteen
girl
age
of sexual intercourse with a
shown,
element of force.
is
the law
essential
(Code Ann.
The
was
1299)
1249,
26-2001;
1968,
§
and not
pp.
Ga. L.
1302).
(Code
26-2018;
1249,
1968,
§
L.
pp.
Ann.
Ga.
of the victim was not shown
the in-
(113
State,
857,
v.
153
860
SE
dictment.
In Echols
Ga.
170)
There we
same question.
this court dealt with this
'upon
"It
decided
this court that
already
said:
has
been
indictment
to show
competent
the trial of an
is
to have
whom the crime was
upon
that the female
years
though
was under ten
of age,
been committed
McMath v.
contained no such allegation.’
State,
authority,
55
303. This case furnishes
Ga.
therefore,
the female
for the admission of evidence that
the indictment
in a case where
unable to consent
to follow
contained no
as to
would seem
allegation
age.
from
that the court is authorized
necessarily
ruling
of law that a female under fourteen
consent,
years
cannot
where
if evidence can
surely
contains no
as to
allegation
age;
be admitted on the
the court
question,
the law in reference thereto. And see the case of
Stephen
State, 225, where the
Ga.
charged there,
will,
accused then
'forcibly
her
did ravish and
feloniously
know’ a named
carnally
female, and
where
indictment contained no allegation
State,
See also Gosha v.
as to her age.
where it
'An
ruled:
infant under
ten
cannot
intercourse,
consent
sexual
and the fact that
such is
conclusive that the act is done forcibly and against
”
State,
(4) (190
her will.’ Also
Wright
Ga.
(1) (4
663); Latimer v.
instruct harmless since the appellant was sentenced to ten years imprisonment which penalty can be for imposed either statutory forcible rape.
It follows that the charge was not error. Judgment All the Justices affirmed. JJ.,
Gunter and Ingram, who dissent.
Argued 11, 1975 June Monroe,
Harvey McGee, A. Paul Ison, William H. District Attorney, Clarence L. Leathers, Jr., Assistant District General, Dunsmore, Jr., John W. Assistant Attorney for appellee. Justice, dissenting.
In my opinion, several fundamental of law principles have to be ignored this case to agree opinion. The indictment "did accused have female, carnal knowledge [the forcibly victim] her will..The defendant not pleaded this indictment and case went to trial. The defense the intercourse was consensual rather than The state the trial requested
forcible. in effect that the law essential element of force when female is under 14. There was evidence that this female was under age convicted defendant verdict of general guilty. The majority opinion affirms the conviction and holds the In was not error. my judgment, conclusion incorrect. The alleges no fact whatsoever of the pertaining victim. Such a fact to an indictment is essential for statutory since consensual intercourse with a female who is not under age is not 26-2018. "It is an elementary ... no can be person convicted of an offense in the indictment. course, There may, be a conviction of a offense lesser than that named in expressly indictment, where the former is necessarily included latter, and also in some cases which the lesser is not so included in the greater offense but where the language used is sufficient to embrace smaller offense.” Goldin v. also, See Gearin v. App. 211). However, circumstances of this I do not see how statutory rape can be considered a lesser included offense of forcible rape. of a female is not essential to an indictment force, forcible because is the age, critical
factor. The of a female is essential to an indictment because age is critical factor in that crime. We have a different might question the present alleged that the female was under age 14. But it does not. makes no mention of age. only Iway can understand the rationale majority opinion byis applying rule in civil cases that *4 the evidence amended the I pleadings. have never heard of it done in a being criminal case because constitutional due process will permit it. "Conviction a not made would be sheer denial of due process.” De Jonge 299 U. S. Oregon, 362. Due process requires the accused shall be informed to as charges against so be enabled to his defense. may present Berger States, United U. S.
In this with forcible charged only § 26-2001. the crime Consequently, under Code Ann. in it statutory was not an issue the case and was error for the to instruct in effect that jury the female was under evidence showed that force proof accomplish was used to equivalent the intercourse. This removed the element of force in a forcible rape case allowed a conviction of a crime any force without of force. The requiring proof but did returned a verdict of whether specify event, or In either I statutory rape. was for believe it was unauthorized because the was not to find force to convict for forcible required indictment did not charge statutory rape.
opinion approves commingling elements evidence two to affirm required separate these offenses the conviction but I cannot do Under the so. rationale majority, an accused by proof only convicted of that offense rape, and receive life imprisonment death neither of punishment, which is authorized law Such a constitutionally result in my opinion. impermissible joins am authorized to state that Justice Gunter
this dissent.
30036. SMITH v. SMITH. Smith, Sr., Plaintiff, H. G. filed a complaint son, H. Floyd County Court of G. Superior Smith, Jr., March, against his of an seeking cancellation that his son deed and option warranty alleging farm and the buy obtained father’s option warranty conveying exerting pre- deed the farm "by dominate influence plaintiff.” and undue fraud on In particular, fraudulently the father the son and the deed to be used represented option were