177 Ga. 772 | Ga. | 1933
The indictment charged the defendant with the offense of rape, in that the accused “with, force and arms did unlawfully, in and upon one . . , a female, in the peace of God and
Sutton v. State, supra, was a case of assault with intent to rape. In Moore v. State, 151 Ga. 648 (108 S. E. 47), the defendant was indicted for the offense of rape. In that case the court said: “It is conceded that a verdict of assault, or of assault and battery, or of assault with intent to commit a rape, may be founded upon an indictment for rape. An assault or assault and battery is necessarily involved in every case of rape. Speer v. State, 60 Ga. 381, 382; Goldin v. State, 104 Ga. 549, 551 (30 S. E. 749); Watson v. State, 116 Ga. 607 (43 S. E. 32, 21 L. R. A. (N. S.)1).” Thus it seems well settled that an assault and battery is necessarily involved in every case of rape. If the lesser offense is necessarily involved, it can not be error to include it in the allegations of the indictment; and if the evidence so authorizes, the issue of the minor offense must be submitted to the jury by the court under proper instructions. In Fields v. State, 2 Ga. App. 41, 45 (58 S. E. 327), the Court of Appeals through Judge Eussell, now Chief Justice of this court, discussed the precise question of alleging the lesser offense in the indictment, citing a number of the decisions of this court. The charge was assault with intent to rape; and it was said: “It is
The motion for a new trial contained one special ground, complaining that the court erred in admitting the following evidence of the husband of the injured female: Q. (by the solicitor-general) : “Before coming into 'court and prosecuting this case, I will ask you whether you talked to Willie Peters’ wife, your sister, about it?” A. “Tes.” The criticism is that the evidence would be hearsay, and that the defendant’s wife, not being a competent witness, could not testify either directly or indirectly against him. This ground is obviously incomplete, as the only answer of the witness was “yes.” The effect of the question and the answer was merely that the witness had “talked” to the wife of the defendant. Nothing whatever of what the wife said is known. Consequently it can not be held that any hearsay evidence was admitted or that the wife testified directly or indirectly.
The judgment refusing a new trial is reversed solely on the ground that the verdict is not supported by evidence. According to
Judgment reversed.