160 Ga. 520 | Ga. | 1925
Harvey Thompson, Charlie Arnold, and Mark Thompson were indicted and tried for the offense of rape; and a verdict was rendered finding the defendants guilty and fixing their punishment at not less than 15 nor more than 2-0 years in the penitentiary. A motion for a new trial was duly made by the defendants, and was overruled at the hearing. The plaintiffs in error excepted to that ruling.
In the first ground of the amendment to the motion for a new trial error is assigned upon the following charge of the court: “You are also the judges of the credibility of the witnesses; that is, the truthfulness of the witnesses; and you have the right to take into consideration the manner of the witnesses while upon the stand testifying, their interest or want of interest in the case, their means and opportunities of knowing the facts to which they testified,' and their personal credibility, as the same may legitimately appear upon the trial, and such other mental tests are you authorized to.apply in determining just what witness or witnesses you will believe in the case.” This charge is criticised
The rulings made in the second headnóte require no elaboration.
In one ground of the motion error is assigned upon the following charge of the court: “The State claims and contends that it has brought evidence here showing that about four o’clock in the afternoon of the 7th of December, 1924, that Harvey Thompson took Gladys Smith to ride from her home in Fairfax to Mill-wood, in this county; that they were riding in a buggy drawn by a mule; that when they came near to a road turning off the main highway, that Harvey Thompson tried to turn the mule off the road into a road leading to a cemetery; that Gladys Smith prevented Harvey Thompson from driving off the main road at that point; that Harvey Thompson drove about a half mile farther, that he seized her around her neck with one hand and with the
The court charged the jury in part as follows: “Look to the evidence, and if you find that the character of Gladys Smith was unchaste before the alleged offense took place, and if you find there is such evidence satisfactory to you, then you would have the right to consider such evidence, first, as to whether her testimony as to what is alleged that the defendants did is true, and secondly, as to whether she consented for the defendant, Harvey Thompson, to have carnal knowledge of her.” There was evidence in the case from which the jury would have been authorized to find that Gladys Smith, the woman alleged to have been outraged, had been guilty of unchaste and immoral conduct with men prior to the date of the alleged offense. Such evidence is admissible to aid the jury in passing upon the question as to the credibility of the prosecuting witness, and in passing upon the question as to whether or not the intercourse with her was without her consent. Seals v. State, 114 Ga. 518 (40 S. E. 731, 88 Am. St. R. 31). And the trial judge correctly instructed the jury as to the purposes for which such evidence is introduced for the consideration of the jury; but he should not have limited the jury, in passing upon the weight of the evidence tending to show the unchaste character of the woman alleged to have been raped, by charging them that they would have the right to consider such evidence if the evidence introduced for that purpose “is satisfactory to” them (the jury). If the evidence upon this subject was of such a character as to raise in the minds of the jury a reasonable doubt as to whether or not the alleged intercourse with the woman was had without her consent, while it might not be entirely satisfactory, it would have been the duty of the jury to have given the benefit of the doubt to the accused.
The court charged the jury as follows: “If you find the contentions of the State in this case are true from the evidence, under the rules of law as given you in charge, then all of the defendants would be equally guilty, and should receive equal punishment at your hands.” This charge was error. The jury found the defendants guilty, with a recommendation of mercy, and fixed the punishment at a term of from 15 to' 20 years in the peni
In the course of his instructions to the jury the court stated: “The defendant Harvey Thompson in his statement admits that he had sexual intercourse with the prosecutrix on the afternoon alleged in the indictment, but he contends that such intercourse was by her consent. And the defendants bring another witness to show other acts of lewdness.” This statement was errorieous, and we can not say that it was harmless so far as relates to the de
There is another part of the charge which might be construed as an intimation by the court that the defendant Harvey Thompson had admitted the act pf sexual intercourse with the prosecutrix on the day named in the indictment. The language is as follows: “There might be- some confusion in your minds. The defendants Charlie Arnold and Mark Thompson deny that they had anything whatsoever to do with Gladys Smith on the date in question, or at any other time; and you have before you only the contention and charge contained in the indictment, gentlemen. They deny that they had anything to do with her; that, on the contrary, she came there to the cemetery, and that for some reason she got out of the buggy and left; that Harvey Thompson was entreating her to ride home with him; that she was angered for some reason, and went away, and that nothing was done to harm her then and there; and that may also be taken into consideration along with the defense and the contentions of Harvey Thompson.” There were three defendants on trial, Charlie Arnold, Mark Thompson, and Harvey Thompson. The court singled out the first two defendants in the order named, and charged the jury that those two defendants “denied that they had anything whatsoever to do with Gladys Smith on the date in question, or at any other time;” and the
We think, in view of the strong denial entered by this defendant, Harvey Thompson, that the intimation in the charge to the jury that he had admitted having intercourse with the girl on the day alleged in the indictment can not be adjudged harmless.
As the judgment of the court below refusing a new trial is reversed upon the grounds of the motion already considered, it is unnecessary to pass upon the remaining grounds, one of them relating to the refusal of the court to declare' a mistrial upon the motion of the defendant, and the others based upon newly discovered evidence.
Judgment reversed.