179 Ga. 401 | Ga. | 1934
(After stating the foregoing facts). We shall deal first with the special grounds of the motion for new trial.
Error is assigned on the admission of testimony offered in
The testimony of the witness Hicks, that he “was called to the front porch, facing that direction; my wife heard some woman scream,” was objected to only as follows: “I object to what his wife said.” This objection was overruled, the court stating that the witness could give said testimony to show his reason for going to the place where the offense was alleged to have been committed. It is not necessary to hold that the court did not err in this statement. The objection was properly overruled, because no reason why the testimony should be repelled was presented by the mere statement “I object to what his wife said.” It does not appear what the witness’s wife said, or that she said anything, or why what she said was for any reason inadmissible on legal grounds.
Objection was made to the testimony of a justice of the peace, who swore that he issued warrants for the defendants on the night of the alleged offense, the objection being that the warrants would be the best evidence. While the warrants would be the best evidence of the contents of the papers, the testimony was competent and admissible in corroboration of the testimony of the prosecutrix that she promptly complained of the offense “that night,” the night of the alleged offense of rape.
Error is assigned upon the charge of the court on the subject of conspiracy, because there was no basis in the'evidence, or in the statements of the defendants, or in the facts and circumstances, to authorize said charge; that there was no conspiracy in the case; and that the charge was an expression or intimation by the court that conspiracy was involved in the case. The criticism that the instruction was an expression or intimation by the court that conspiracy was involved is without merit, and we deem that the circumstances of the case as detailed by the testimony in behalf of the prosecution, if credited by the jury, were sufficient to authorize them to infer that there was an implicit agreement between the defendants with Mildred Merritt, who was not introduced as a witness, that the prosecutrix should be compelled to have sexual intercourse with any one, or as many, of the defendants as might desire to have carnal intercourse with her, without her consent, by force, and against her will. We can not hold that in these circumstances the court erred in charging on the subject of conspiracy as set forth in the instructions of which complaint is made. We reach this con
The charge to which exception is taken in the sixth ground of the motion for new trial, and which is set out in the statement of facts above, is not subject to the criticisms directed against it, when it is construed in connection with the charge as a whole. The assignment that the expression, “if she was carried there by all for that purpose,” was error, because there was no evidence on which to base it, “it being uncontradicted and undisputed that one of the defendants did. not go there to this place with the others,” is not supported by a review of the evidence. It was in the evidence that Blake Powell, alias Blake Kilgore, one of the defendants, did not come to the scene of action until Tack Laminaek went after him; but there was also evidence that the car belonged to Powell, alias Kilgore, and that he intended to go with the first contingent, and probably waited to get the whisky which he brought to the scene upon his arrival. If the jury believed the testimony of the prosecutrix, she did not know that he intended to participate in the ride; he had not intended to go, and she positively denied the unsworn .statements of all the defendants that she sent for Powell, or that she knew that Tack Laminaek was going for the purpose of bringing him into the action. Complaint is made that the court did not define the terms “implied agreement” or “express agreement,” and what it would take to constitute such an agreement, etc. When read with the context, the words “implied agreement” and “express agreement” are of such obvious meaning as to be readily understood by any jury of ordinary intelligence; and certainly it would have required a proper written request to invoke a definition of these words, for it must be remembered that the only denial of the testimony of the prosecutrix canle from the unsworn statements of the defendants. The rule is invariable, that the court is not required to charge the jury in a criminal case upon a principle of law dependent entirely on the statement of the accused, unless there be an appropriate timely request for such instruction as may be desired.
It is contended that the charge in reference to the testimony of witnesses as to the good character of the prosecutrix for chastity
In ground 9 error is assigned on the charge set out in ground 7, but for a different reason. It is contended that the instruction was restricted in its application; that it was not full enough; that taken alone it is not the law that should be applied; that the evidence of good character offered by the State was held out in this charge as tending to support the good character and credibility of the witness; that the court in this connection failed to instruct the jury that it was a question for them to determine whether or not the witness had by this testimony been sustained; that the court failed to instruct the jury as to the weight and credibility of the sustaining evidence of good character, or to lay down the rule by which the jury might measure and apply the same. Movants contend that as the court undertook to charge the jury on the subject of sustaining character evidence, the court should likewise have charged the jury fully upon this subject, and that it was, after all,
The assignment of error contained in the tenth ground is that the excerpt from the charge of the court therein referred to is not a correct statement of the law upon the subject dealt with. The complaint is that the instruction was given by the court just following the charge on the question of conspiracy, and that the charge “intermingled and confused the charges on conspiracy and that of principals in the first and second degrees.” We wholly disagree with this contention. It is also insisted that the charge was error because the court failed to explain to the jury the rules that would govern them in determining whether or not one or more of the defendants were guilty of being a principal in the first and second degree, and thus left the jury without instruction how to apply this principle to the facts in this case, and without instruction as to how to proceed in the trial of the case if they found that some of the defendants were principals in the first and some principals in the second degree. After consideration of the charge of
The salient points in the evidence are set forth above. We do not deem it necessary to recapitulate the testimony. The testimony of the prosecutrix, if believed by the jury, tended to establish the fact that all three of the defendants, either as conspirators or as active participants (whether they or any of them participated as principals in the first degree or as principals in the second degree is immaterial), compelled the prosecutrix violently and forcibly, without her consent and against her will, to allow two of the participants to have sexual intercourse with her. And if corroboration be necessary, it is ample in this case to authorize the verdict. Whether the girl, in making the complaint to her mother, did so at the first proper opportunity or not, was a question to be determined by the jury. Whether the signs of the intercourse and the evidence of force were corroborated was also a question for the jury. The torn sleeve which the girl said was wrenched from her coat in her resistance and the torn pants which were jerked off her body in the encounter were before the jury. A witness testified that at a time which could not have been later than two hours from the assault she came in company with her mother, and at their request he procured a warrant for the arrest of the accused. By numerous witnesses she was proved to have sustained for several years an unbroken record for chastity, and the testimony of the doctor who examined her privates was that, while he could not say whether or not she gave consent to the intercourse, her hymen had been only recently ruptured, indicating her previous chastity; thus if believed, absolutely demolishing the testimony of one of the defendants, who, in rebuttal of the testimony of the prosecutrix that she had never had intercourse with any man before the occurrence under consideration, stated that in 1930 he had intercourse with her. Numerous marks and bruises were upon her person, and these were explained by the defendants as having resulted from a stiff fight with Mildred Merritt; but the jury were authorized to consider whether the wounds seen on the inside of her thighs, and treated by
Judgment affirmed.