184 Ga. 62 | Ga. | 1937
Will Wright, a negro man, was indicted for the rape of a named white girl. Upon arraignment Wright pleaded not guilty. The evidence, including that of the injured female, made substantially this case: The victim of defendant’s alleged crime was between twelve and thirteen years of age at the time. The defendant was an employee of the park department of the City of Atlanta, at the Grant Park- Zoo, and his duties consisted in feeding the wild animals. He had a key to the meat-house. The city would buy old mules and horses for animal food, kill and butcher them, and keep the meat in the house, where there was a refrigerator, benches, meat blocks, a stove, and a sink. The building, housing the major part of the caged animals, was near by. The injured female, together with other young children, was in the habit of playing in the park and around the zoo. There they made the acquaintance of the defendant, who was about fifty years of age. He got the female involved in this ease to enter the meat-house with him, and there he would pat her legs and play with her private parts. On one occasion the girl la.y down on a bench _ in the meat-house, and the defendant pulled up her dress, and, after feeling of her legs, tried to insert his penis in her privates, but failed. He got up, went to the sink near by, and discharged semen.. On another occasion he evidently tried to have sexual intercourse with the girl, with both standing erect, and was unable to penetrate her privates, but nevertheless ejaculated on some iron pipes in the meat-house. The injured female testified to other occasions, and to an occasion on a certain day when the defendant succeeded in penetrating her privates with his penis. No effort was made by her to resist the defendant. A physician, who examined the female after the alleged rape, stated that her vagina would admit two of bis fingers, and there were no tears; that that was an indication that she had had sexual intercourse, with that much opening; that it would take the male organs of a man to make such an opening; and that it was his opinion that the development of her private parts would admit the male organs of a- man. The girl testified that a boy of nine years, two or three years before, had “played with her.” The defendant gave to this girl small amounts of change on different occasions, during a period of several weeks, when all this conduct was taking place, and he
1. A new trial is not required because the court denied the
2. The defendant assigns as error the failure of the court to instruct the jury on the law of circumstantial evidence. There was no request for such instruction. The conviction did not depend entirely on circumstantial evidence. There was some direct evidence on all the essential elements of the offense for which defendant was tried, including corroboration of the female. Therefore failure of the court to charge on the law of circumstantial evidence is not cause for a new trial in this case. McElroy v. State, 125 Ga. 37 (53 S. E. 759); Wilson v. State, 152 Ga. 337 (110 S. E. 8); Haden v. State, 176 Ga. 304 (17), 312 (168 S. E. 272); Harris v. State, 178 Ga. 746 (2) (174 S. E. 240). For the same reasons, the grounds are not sustained in which the defendant complains of the failure of the court, without request, to define to the jury the meaning of circumstantial evidence, and to instruct them on the law of circumstantial evidence'as set forth in the Code, §§ 38-102, 38-109. See Brady v. State, 159 Ga. 469 (126 S. E. 250); Strickland v. State, 167 Ga. 452, 454 (145 S. E. 879); and cit.; Starnes v. State, 45 Ga. App. 238 (2) (164 S. E. 89).
4. The defendant was convicted of the rape of a female under fourteen years of age. While the indictment charged that he had carnal knowledge of her forcibly and against her will, and did not state her age, the evidence showed that the crime was accomplished with her consent and that she was under fourteen years of age at the time. Echols v. State, 153 Ga. 857 (113 S. E. 170). A child under fourteen years is legally incapable of consenting to illicit sexual intercourse. Todd v. State, 25 Ga. App. 411 (103 S. E. 496). In such cases the presumption of the law is that a female under that age will not voluntarily consent to fornication; and this presumption supplies the force essential to the commission of the crime of rape. Holland v. State, 161 Ga. 492 (131 S. E. 503); Ollis v. State, 44 Ga. App. 793 (163 S. E. 309). Proof of force and: resistance is therefore unessential. 52 C. J. 1095. Also, the age of the girl is sufficiently proved when she testified positively as to the same. Where the female child testifies that she was of a particular age below the age of consent, which is not disputed, this proof of age, taken in connection with her appearance on the witness-stand, is sufficient. While the evidence showed that the alleged carnal knowledge of the female in this case was not forcibly and against her will, there was no dis.pute as to her age, which she testified was at the time between twelve and thirteen years. In order to sustain a conviction of rape of a female under the age of consent, where there was no force, the State must prove beyond a reasonable doubt the fact of intercourse with defendant, and that it occurred while the girl was under the age of consent; and where there is no room for doubt as to the fact of intercourse or as to the female’s age, the evidence will be deemed sufficient. At common law and in the absence of a statute requiring corroboration, it is generally held in other jurisdictions that the unsupported testimony of the fe
The act of July 31, 1918 (Ga. L. 1918, p. 259; Code, §§ 26-1303, 26-1304), declaring, among other things, that any person having sexual intercourse with a female under age of fourteen years shall be guilty of rape, and “that no conviction shall be had for said offense on the unsupported testimony of the female in question,” was intended to apply only to cases where the act of intercourse is accomplished with the actual consent or acquiescence of the female, and is to be treated as rape merely because the female is under the age of consent as therein fixed. Griffith v. State, supra; Clowdis v. State, 176 Ga. 755 (168 S. E. 768); Morris v. State, 179 Ga. 519 (176 S. E. 395); Rivers v. State, 179 Ga. 782 (177 S. E. 564). Under such a statute, the evidence supporting- that of the female or corroborative thereof must be testimony other than that of her own, as to the commission of the offense by the accused; and while it need not be sufficient of itself to establish the guilt of the accused, it must tend to establish his guilt, and although it is not necessary that the female be corroborated as to every essential element of the crime. In other words, there must be corroborating evidence fairly tending to prove that the crime was committed, and that it was committed by the defendant. Such corroborative evidence, whether consisting of acts or admissions, must at least be of such a character and quality as tends to prove the guilt of the accused by connecting him with the crime. However, it need not include testimony of an eye-witness of the act
5. The court charged the jury: “Before you would be authorized to convict the defendant there must be evidence, independent of hers, sufficient to connect the accused with the offense charged; and all the evidence taken together must convince your minds beyond a reasonable doubt of the guilt of the accused, in order for a conviction to be sustained. Now, it is for the jury to determine, gentlemen, whether the female alleged to have been raped has been so corroborated or not. If there has been corroborating evidence, it is not necessary that the corroborating evidence should of itself be sufficient to show the defendant’s guilt beyond a reasonable doubt; the jury would be authorized to convict the defendant if they are satisfied of his guilt beyond a reasonable doubt from all the evidence.” This instruction did not have the effect of authorizing the jury to convict the defendant upon testimony that may not have satisfied their minds beyond a reasonable doubt as to his guilt. None of the criticisms directed to this c-xcerpt from the charge are meritorious.
6. A new trial is not required by the assignment of error on the charge that “if there has been corroborating evidence, it is not necessary that the corroborating evidence should of itself be sufficient to show defendant’s guilt beyond a reasonable doubt,” because, as contended, the court failed to charge, in connection therewith: “But such evidence . . must be sufficient to reasonably satisfy your minds that the accused was connected with the offense charged.” See Riley v. State, 153 Ga. 182 (3) (supra).
7. The charge on the question of corroboration was not error in that the court “left the weight of corroboration . . unexplained.” The charge here excepted to was as follows: “Now, gentlemen, the testimony of a single witness is generally sufficient to establish a fact; but there are certain exceptions to this rule of law, and this case presents one of such exceptions, it being the law that the jury can not convict the defendant of the offense for which he is on trial upon the unsupported testimony of the fe
8. The evidence tended to show a course of improper conduct between the defendant and the female over a period of several weeks, culminating in the automobile ride which led to the discovery of his alleged criminal practices with her. The judge, over objection of defendant, permitted the injured female to testify concerning other occasions when the defendant played with and fondled her legs and privates, on which he attempted penetration thereof with his penis, and on which he succeeded in accomplishing the act of sexual intercourse with her. The defendant contends that it was error for the court to admit testimony concerning other and independent transactions and offenses which were not charged in the indictment. Under the Code, § 38-202, it is provided that the conduct of the parties in other transactions is irrelevant matter, unless the nature of the action renders necessary or proper the investigation of such conduct. So while the general rule is, that, on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible (Moose v. State, 145 Ga. 361, 89 S. E. 335; Griffin v. State, 15 Ga. App. 552, 83 S. E. 871), yet such evidence may be admissible to show previous attempts by the accused to commit the same crime upon the victim of ,the
9. The defendant complains that the court erred in denying him a new trial on account of certain alleged newly discovered evidence.. The State introduced Dr. Drukenmiller on the trial, and he testified to finding human semen on certain pipes at a certain time and place in a building in Grant Park, and, after long scientific explanation, he testified: "I can say conclusively that those spots which I removed from those pipes were human seminal fluid, as a result of the tests I made. In other words, just in plain English, it is a discharge from a man when he is copulating, which has been produced in some artificial manner.” On cross-examination the witness admitted that it could have been caused by masturbation. The alleged newly discovered evidence consisted of the affidavit of a physician and chemist who was properly accredited, and who deposed that human semen when exposed to the air dissolved and disappeared in a very few hours, and that it would be impossible to identify spots on an iron pipe as the semen of a male human being after the time had elapsed which had been testified to by Dr. Drukenmiller. Plainly the alleged newly discovered evidence was contradictory of the testimony of Dr. Drukenmiller, and impeaching, even if it could be conceded that it could not have been discovered by defendant’s counsel before or during the trial. See Davis v. State, 175 Ga. 356 (165 S. E. 56); Adams v. State, 172 Ga. 260 (157 S. E. 625); Morris v. State, 167 Ga. 286 (145 S. E. 445); Drane v. State, 130 Ga. 349 (60 S. E. 863); Bass v. State, 154 Ga. 112 (113 S. E. 524); Jenkins v. State, 19 Ga. App. 626 (91 S. E. 944); Code, § 70-204.
10. The evidence supported the verdict. The court did not err in overruling the motion for new trial.