56 S.E.2d 837 | Ga. Ct. App. | 1949
1. So far as the general grounds are concerned, the evidence for the State overwhelmingly sustains the verdict.
2. As to whether a witness during the trial of a case, conducts himself in such a manner pertaining to the case as to be in contempt of court is a question for the trial court to decide both in the motion for a new trial as to whether such conduct influenced the jury in its findings, and whether such conduct is sufficient as the basis of contempt. This is not a matter for counsel to determine, although he may suggest it to the court.
3. Special ground 1 shows no cause for reversal.
The defendant made a statement as to what happened at the scene of the attack and corroborated the evidence of the female and of that in corroboration of her evidence to the effect that he did turn off the highway; that he did get out of the car; that he proposed intercourse with her, but he testified also that she consented and that at the time the car drove up behind them he was on the ground with his arm around the female; that there was no scratching or kicking or resisting whatsoever; and that while he was thus on the ground with the female, the car drove *547 up behind them and he and the female re-entered the car; that he did not speed the car off, but that it had rained and the ground was soft, which produced the evidence which indicated that the car had speeded. We might state here that the witnesses for the State who examined the spot of ground where the attack was alleged to have occurred testified that they found no imprint of female tracks on the ground, but that they did find imprints of a man's tracks. The evidence amply sustains the verdict on the general grounds and there is no merit in the assignments of error based thereon.
2. We come next to consider the motion which forms the basis of the exceptions pendente lite. In discussing the assignments of error on the exceptions pendente lite we will discuss these assignments together with special grounds 2, 3, and 4, because the special grounds and the motion relate to the same subject-matter. We will not go into detail as to the allegations of the motion and the proof in support of it, nor as to the details in special grounds 2, 3, and 4. We will only state that these assignments of error may easily be divided into two divisions: First, as to what took place while the defendant and the female were sitting in the car in front of Maluda's cafe. Witnesses for the defendant testified that they saw the defendant and the female caressing and embracing to a disgraceful extent. The purpose of this testimony could only be admissible for the consideration of the jury as a circumstance for the jury to consider as to whether the female gave her consent for the defendant to do what he was alleged to have done forcibly and against the will of the female after they left Maluda's cafe. It could not legally have been admissible for any other purpose. It is an elementary principle of law that a female of the most depraved character (and there is no evidence in this case to show that the female here was depraved by general reputation or otherwise), may be the subject of carnal knowledge of her forcibly and against her will. The jury gave no credence to this phase of the defendant's testimony. Such evidence of the conduct of the female and the defendant in front of Maluda's cafe was produced by the defendant himself, by his own witnesses. So this phase of it has no merit.
Second, the motion not to pass judgment, etc., and special *548 grounds 2, 3, and 4, attack the conviction on the ground that the verdict was procured by fraud on the part of the State for that the conduct of the father and the brothers of the female in talking with and threatening the defendant's witnesses before and after they had been subpoenaed constituted acts of contempt of the court. It appears to us that this was an entirely different case from the question as to whether or not the jury were authorized to find, under the evidence, that the defendant was guilty of assault with intent to rape. It is claimed that the father and the brothers talked to the defendant's witnesses and inquired of them as to what they would testify, informing the witnesses that they would be expected to tell the truth and nothing more, and that if they told anything other than the truth on the female it might not be good for them. The defendant produced the witnesses on this point and brought out on cross-examination certain evidence pertaining to it. The jury heard it all. The witnesses themselves testified that they did tell the truth on the stand and that the conversation had with relatives of the female had nothing to do with what they testified at the trial. The witnesses for the State testified that they did talk with the defendant's witnesses, but that they did not endeavor to influence them as to what the defendant's witnesses should testify at the trial other than that such witnesses would be expected to tell the truth. In this view the court did not err in overruling the motion, nor in overruling special grounds 2, 3, and 4. All of this was brought out during the trial in the presence of the court and jury. In the face of it the jury returned a verdict of guilty against the defendant. The court accepted this verdict as being the truth of the case. So far as we know the court did not then and has not since arraigned any of the parties referred to for conduct amounting to contempt of court. This is the province of the trial court. This is true notwithstanding the fact that the attorney for the defendant during the progress of the trial admonished the court to take note that the conduct of the relatives of the female was such conduct as amounted to contempt of court. There is no reversible error in these assignments.
3. Special ground 1 assigns error because while the prosecutor, the father of the female, was on the stand, he illegally *549 testified in detail as to the statement made by the female not in the presence of the defendant, whereupon counsel for the defendant objected to the admission of such statements and asked that they be ruled out. By an examination of this ground of the motion it appears that the witness testified in response to a question from the solicitor-general as to where the witness went, the witness replying substantially that he and his son got up early the next morning after the alleged attack and drove out to the place where the female had said that the attack occurred; that the female was so excited that she could not give an exact description of the place where the attack occurred, but that she thought it was called Dead Man's Curve. Then counsel for the defendant stated: "I object to that and ask the court to rule it out. That is contrary to law and objectionable from every standpoint." The court admonished the witness: "Don't state that." Whereupon the solicitor-general said: "Well, that is not admissible. Just leave out what she said." If counsel for the defendant was not satisfied with this ruling, he should have so stated then and invoked a further and more specific ruling. In such event no doubt the trial court would have ruled more specifically. The solicitor-general occupied a quasi-judicial position in the performance of his duty and his statement to the effect that such testimony was not admissible may further be considered in this connection as to whether the court's ruling and the solicitor-general's statement were sufficient to eliminate any harm that probably might have been done to the defendant. This ground does not require a reversal.
Counsel for the defendant cites no authority in support of his contentions. We do not think it either needful or beneficial for us to cite any authority.
The court did not err in overruling the amended motion for a new trial for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur. *550