181 Ga. 32 | Ga. | 1935
Lead Opinion
Robert Slaughter was convicted of the offense of rape. His motion for new trial was overruled, and he excepted.
The rules of evidence in rape cases are, in some particulars, different from those applicable in other cases. The crime is generally in secret, and there is consequently an absence of direct testimony. The prosecutrix is allowed to give testimony under oath, and it is a wise provision of our law which says that such testimony is not sufficient to warrant a conviction unless it is corroborated by facts and circumstances in connection therewith. The question of guilt or innocence in a case of this character must be determined by the weight, and not the character of the proof. In the case of Innis v. State, 42 Ga. 473, it was aptly said by Lochrane, C. J.: “While it is the duty of courts to protect female chastity by every protection of the rules of law, still, in cases of this character, care should be taken not to sacrifice justice to sentiment.”
Let us look for a moment at some of the testimony of the prosecutrix in this case. She testified as follows: “I know Robert Slaughter. I am twenty-four years old. I met the defendant a week ago at Florine Robinson’s. Gene Hale was with him at the time. We all rode around, and they suggested that we go out to Ada’s place, and I asked who Ada was, and they said, ‘We will go out there and get a bottle of beer.’ They said I hadn’t been living here long enough to know who Ada was. I told them I had never been'out there. So we went out to Ada’s and drunk a bottle of beer, and we all set in the little room and stayed there a little while. Gene, Florine, and the defendant were present, and we left there and rode around. . . Then we went up to that club. . .
She then testified about his driving to a certain roadhouse, and said, “We stopped in front of the filling-station. The lights were burning. The lights from the filling-station and store were
The use of force is a necessary element to the crime of rape, and without it there can be no such crime. If there be consent upon the part of the woman, an essential part of the crime of rape is destroyed; and such consent need not be evidenced by words, but may be shown by mere passiveness or failure to exert every possible means to prevent the act. In Jones v. State, 90 Ga. 616 (16 S. E. 380), it was said that “in the famous speech of the great Erskine, in Howard v. Bingham, he drew a picture of ‘a charming woman, endeavoring to conceal sensations which modesty forbids the sex, however enamoured, too openly to reveal, — wishing beyond adequate expression what she must not even attempt to express, and seemingly resisting what she burns to enjoy.’ That a woman exhibits hesitation, reluctance, and a slight degree of
In Davis v. State, 152 Ga. 320, 327 (110 S. E. 18), it was said: “If she consent to the sexual intercourse, although that consent may be reluctantly given and although there may be some force used to obtain her consent, the offense can not be rape. Although she may have resisted at the time the accused first took hold of her and at the time she was thrown upon the lounge, yet if she consented after this resistance and before the accomplishment of the sexual act, the offense was not rape. In order that the offense might constitute rape, she must have resisted with all.her power and kept up that resistance as long as she had strength. Opposition to the sexual act by mere words is not sufficient. Any consent of the woman, however reluctant, is fatal to a conviction for rape. The passive policy will not do.” In Patton v. State,
The evidence does not measure up to the requirements in cases of this character, and is insufficient to support the verdict.
Judgment reversed.
Rehearing
The court did not overlook the evidence referred to; and upon consideration the former decision in this case is adhered to.
Concurrence Opinion
concurring specially. I concur in the judgment of reyersal, but can not concur in some of the reasons assigned in the opinion. It is unnecessary to discuss the principles from which I dissent, as has been done in several cases heretofore. Among such rulings is that the testimony of the injured female “is not sufficient to warrant a conviction unless it is corroborated by facts and circumstances in connection therewith.”