Willie E. Robinson appeals from his conviction of
The record has been presented in the foregoing detail to show that despite the victim’s age, which might in other circumstances have justified consideration of statutory rape under Code Ann. § 26-2018, the record here is devoid of indications that the attack was other than forcible rape under Code Ann. § 26-2001, which was charged in the indictment. The only question presented by the alibi defense was whether Robinson was the perpetrator.
The state additionally introduced the following in-custody, written "confession” by Robinson: "I remember I was walking down this street and I seen this house but I did not go in the first time and I seen a little girl about four (4) houses up the street on Ellis St. and she was on a bicycle then, but when I crossed the street I sat down
An officer who testified in regard to the written statement testified that Robinson had been told that he was accused of the rape of a six-year-old child, and that before he agreed to give the written statement, "he said he would tell us the truth and that he’d done it.” The state also introduced testimony by Robinson’s wife that "I told him that what he had done to that little girl was wrong, and he said he knowed that and he was sorry because it was a shame to me and Charles [her son].”
1. Enumeration 1 urges error in denying Robinson’s new trial motion made on the general grounds and on other grounds the overruling of which are separately enumerated as error and discussed below. The record detailed above shows the evidence was ample to sustain the verdict and this enumeration on the general grounds is without merit.
2. It is contended in enumerated error 2 that the court erred in charging the jury with reference to the law of confessions because Robinson’s statement was not a "confession” in that it failed to acknowledge all the elements of the crime, specifically not admitting penetration. Where the accused has made only an
Although it has often been stated that to amount to a confession the statement of the accused must admit all the essential elements of the crime, e.g.,
Bloodworth v. State,
Applying this discussion to Robinson’s statement, it is true as Robinson contends that the statement makes no mention of penetration, and states only that "everything started getting fuzzy.” However, Robinson, unlike Bloodworth, nowhere stated that he abandoned his attempt. The concluding portion of Robinson’s statement concerns his subsequent efforts to conceal evidence of the crime. These factors distinguish Bloodworth and make of the statement under consideration a confession because the attack in question upon the child has been admitted, subject to a memory lapse, without exculpation or justification, and the statement is not one from which the jury could infer innocence. The attack admitted by the statement was shown by the other evidence to have been forcible rape. The statement, taken as a whole, can only be thought to have been given by Robinson for the purpose of assuming responsibility for the crime charged, as he assumed it in the oral statements to which an officer and his wife testified. All these statements taken together constitute a confession, and there was no error in the trial court’s charging on confession.
3. It is asserted in enumerated error 3 that the trial court erred in failing to charge on the lesser crimes of enticing a child for indecent purposes, assault with intent to commit rape, molestation of a child, and assault and battery. The testimony of the medical doctors who examined the victim made it very clear that the offense charged had been completed, and therefore it was not error to fail to charge lesser included crimes.
Payne v.
4. The appellant contends in enumerated error 4 that the court erred in charging on both statutory rape and forcible rape. Life imprisonment, to which Robinson was sentenced, is a more severe punishment than is authorized for statutory rape. Robinson was not indicted for statutory rape but for forcible rape only and the jury were told that their only three possible verdicts were "guilty” (of forcible rape under Code Ann. § 26-2001) "not guilty” and "not guilty by reason of insanity.” However, at one point in his charge the trial court gave the following instruction concerning statutory rape which carries a lighter penalty: "Now, members of the jury, should you believe that the female alleged to have been raped was under the age of fourteen years, the following principles of law would govern you. A person commits statutory rape when he engages in sexual intercourse with a female under the age of fourteen years, not his spouse, provided that no conviction shall be had for this offense on the uncorroborated testimony of the female .. . Members of the jury, if you should believe beyond a reasonable doubt the defendant did have carnal knowledge of or sexual intercourse with the female alleged to have been raped and that she was at the time under fourteen years of age and that he did — that he had not previously become lawfully married to such female, you would be authorized to find him guilty.”
Thus, the charge of the judge permitted the jury to find Robinson guilty of forcible rape (Code Ann. § 26-2001; Ga. L. 1968, pp. 1249, 1299), under a definition of statutory rape, and to impose a sentence of life imprisonment which could not be imposed for statutory rape. Specifically, under the instructions as given, the jury were in effect authorized to find Robinson guilty of forcible rape without being required to find that force was used. This was error on the part of the trial court, and unless it was harmless error it must be conceded to have due process dimensions. Our inquiry must be whether on
this
record taken as a whole prejudicial error has occurred. While acknowledging the difficulty of the question, we conclude that the error was not prejudicial because there was nothing in the record which would
5. It is asserted in enumerated error 5 that the court erred in its charges to the jury on rape and statutory rape in not stressing to the jury the necessity of some degree of penetration. Under the evidence in the case and for reasons detailed above, there was no error in failing to stress this point.
6. It is contended in enumerated error 6 that the court erred in allowing hearsay testimony by the mother and the investigating officer to be admitted to the jury on the basis that it corroborated "testimony” concerning the rape, when there was no direct testimony by the victim. The child did not testify on the trial. Her mother was allowed to relate the statement made by the child when she returned to her home immediately after the offense.
This evidence was admissible, not as corroboration of the young victim, since she did not testify on the trial, but as a part of the res gestae of the transaction. Such an outcry on the part of a child six years of age, immediately after the transaction, would certainly come within the rule concerning res gestae that it be free from the suspicion of device or afterthought. Code § 38-305;
Hooks v. State,
7. Enumerated error 7 contends that the court erred in instructing the jury on corroboration of the "testimony” of the injured female, and that they should determine whether the "testimony” of the female had been sufficiently corroborated. The child did not testify. The trial court’s language constituted a slip of the tongue, but such slips are not necessarily grounds for reversal. See
Wingfield v. State,
8. The 8th enumerated error contends that the evidence was not sufficient to corroborate Robinson’s confession, the injured child not having identified Robinson and no other evidence having been introduced sufficient to identify the appellant as the perpetrator of the crime.
There was sufficient circumstantial evidence to corroborate the appellant’s confession, and there is no merit in this contention.
9. It is contended in enumerated errors 9 and 10 that the court erred in admitting in evidence the waiver of constitutional rights signed by Robinson, and his confession, because he was not mentally capable of understanding his constitutional rights or making a voluntary admission of guilt.
There was testimony by a psychiatrist who had examined him that he was "functioning in the borderline of mental retardation.” This psychiatrist testified that he considered Robinson mentally competent insofar as understanding his relationship to other persons and what they were telling him. Robinson had spent some of his childhood years in a school for the mentally retarded. After leaving the school, he had married, and he was employed at the time the offense was committed.
Under the evidence submitted, it was not error to find that he had mental competence to waive his constitutional rights and to make the written admissions.
10. The 11th enumerated error complains that the
The wife is a competent witness against her husband in a criminal trial. Code § 38-1604, as amended by Ga. L. 1957, p. 53. No objection was made at the trial to the evidence complained of in this enumerated error, and the question of whether it should have been excluded as a confidential communication between husband and wife can not be made on the appeal.
Holloway v. Hoard,
No reversible error having appeared, the judgment will be affirmed.
Judgment affirmed.
Notes
. " T said [to the accused], your wife was choked to death,’ and without hesitation he said, 'Yes, that is right.’ I said, 'Why did you do it?’ He said, 'Well, she drew a gun on me and I knocked the gun out of her hand, and