Allen v. State , 201 Ga. 391 ( 1946 )

1. There being evidence to show that the accused committed the crime of rape as charged in the indictment by using a knife to intimidate and force his victim to submit, proof that the defendant, within a period of one month and in the same general section of the City of Atlanta, attacked two other women, employing a knife as a means to intimidate and frighten into submission, was admissible for the purpose of identification and showing plan, motive, and scheme.

2. Though the victim testified that she had never before seen her assailant, and that it was dark when he assaulted her, her positive testimony upon the trial identified him as her assailant, and her testimony that she had previously identified him at the jail was not incredible as a matter of law, but her credibility was a question exclusively for determination by the jury. There was other evidence identifying the defendant as her assailant. The evidence as a whole being sufficient to prove the crime as alleged in the indictment, the general grounds of the motion for new trial are without merit.

No. 15606. OCTOBER 10, 1946. Lee James Allen was convicted, without recommendation of mercy, in Fulton Superior Court on March 6, 1946, of the offense of rape. The alleged female victim testified that she was a white woman 41 years of age, had married at the age of 14, and has two children, ages 21 and 27. She separated from her husband, who has married again. On October 17, 1945, she lived at 980 Pulliam Street, and between 8:30 and 9 o'clock p. m. she was on her way home, walking on Memorial Drive between Pulliam and Washington Streets. Before she saw or heard the defendant he took hold of her and dragged her in the weeds, which were as high as her head. He dragged her about 50 feet onto a vacant lot, and there threw her to the ground, jerked her step-ins off, and told her that she need not holler, that negroes lived along there. When he first put his hands on her she felt some substance on her neck that felt like a pocket knife closed. She said, "Oh, my God, a negro!" and then was when he said she need not holler because negroes lived along there. He pushed her to the ground and had sexual intercourse with her. She tried to prevent it. She tried to close her legs, tried to cross her legs, tried to put her hands between her legs, and put her hands over her female organ, but he forced his way, removed her hands, and forcibly had sexual intercourse with her. He was engaged in the sexual act two or three minutes. This was in Fulton County, Georgia. As soon as he released her she went straight to Produce Row, about a half a block away, and told the first man she saw what had happened. He telephoned the policeman. The first policeman came in about twenty minutes, and she reported to the officer what had happened. She gave him a description of the person who had raped her, and he took her to the hospital where her female organ was examined by a doctor. The sexual intercourse was without her consent, and she resisted to the limit of her ability. In February, 1946, she went to the jail and identified the defendant, who was lined up with five or six other colored men and was about the third from the end, as being the person who raped her. She went with an officer inside the cell and told the defendant that he knew her and knew the coat she had on, whereupon he replied that he did recognize the coat. She testified that it was the same coat that she had on on the night he raped her. The police officer testified that, when he reached her, her coat was covered with grass and dirt and indicated that she had been dragged. The doctor who examined her testified that a man had had intercourse with her at some time within 6 or 8 hours prior to his examination. The State introduced a writing in which the crime as described by the female victim was admitted by the defendant. This confession was signed by the defendant, and the officers who witnessed it testified that it was made freely and voluntarily and without fear or favor, and that the defendant had voluntarily gone with the officers to the scene of the crime, showing them where it was committed.

The State introduced a white female witness who testified that on September 9, 1945, she was living at 505 Kelley Street, and that about 2:15 a. m. she heard the shades of her window flapping and looked and saw the defendant coming through the window in her bedroom with a knife in his hand. He grabbed her and told her that he would kill her if she hollered, made her lie down on the bed, ripped and tore her gown off, and had sexual intercourse with her against her will and without her consent. She had had an operation a few months previously, and the intercourse was hurting her so badly she told him she would give him $20 if he would quit, and he said, "Make it $25," and she made no reply, he having his hand over her month. She also went to the jail in February and identified the defendant as her attacker. A writing signed by the defendant, admitting the attack upon this lady exactly as described by her, was admitted in evidence.

The State introduced as a witness another white lady who testified that she was living in a house with her father at 352 Kelley Street in Atlanta on October 7, 1945. Between 2 and 2:30 at night she was awakened by someone striking a match and lighting a candle. She saw the defendant standing near her bed with a lighted candle in one hand and a knife in the other. He told her to "say nothing." She jumped and grabbed the knife and held onto it, out of her bedroom into the kitchen, screaming for her father. Her father came to her, and the defendant went out at the kitchen window. The defendant snatched the knife out of her hand, which was cut to the bone. She got a good look at the man with the candle lighted. She subsequently identified the defendant as the man. She made this identification at the police station in February. There were seven in the line and she identified the defendant. The State introduced a written statement signed by the defendant, admitting his conduct as testified by this witness.

Officers testified to the defendant's voluntary verbal admissions and confession as shown by the written documents introduced, and that the accused voluntarily accompanied them to the three places where he had committed the crimes, and pointed out their location.

The defendant made a statement to the jury in which he denied his guilt, and stated that he was forced by officers Moss and Cox to make the confession. He stated that he did not know anything about what they had him accused of, that he was not guilty, that he had never done anything like that in his life and had never tried to do it, that he thought too much of his life to be doing anything like that, and that he was born in 1929, December 30, and was sixteen years of age.

The defendant objected to the testimony of the witnesses relating to other crimes, and to the admissions signed by the accused and the testimony of the officers relating thereto. These objections, together with exceptions to the charge relating to other similar crimes and submission to the jury of that evidence, constitute the ten amended grounds of the motion for new trial. The exception is to the judgment overruling the motion for new trial. 1. Each of the ten amended grounds of the motion for new trial, comprising 36 pages of this record, assails the conviction of the movant upon the ground that the evidence of other crimes committed by the defendant was admitted over objections, and in the charge to the jury they were authorized to consider such evidence in reaching a verdict in this case. While the various grounds attack from different directions, each is based upon the contention that all of the trial relating to the other crimes was erroneous. Therefore, the special grounds will be considered together, and a ruling upon the one question upon which all are based will determine all of the grounds. In Williams v.State, 152 Ga. 498 (110 S.E. 286), this court, speaking through Chief Justice Fish, said: "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; but to this rule there are several exceptions. Among them is the admissibility of evidence showing or tending to show the commission of crimes other than that for which the accused is on trial, for the purpose of showing motive, plan, or scheme." The quoted rule and exceptions were quoted with approval in Merritt v. State, 168 Ga. 753 (149 S.E. 46). InWilson v. State, 173 Ga. 275 (2) (160 S.E. 319), after stating the general rule it is said: "But such evidence is admissible where there is some logical connection between the two from which it can be said that the proof of the one tends to establish the other." This statement of the exception to the general rule was quoted with approval in Barkley v. State,190 Ga. 641 (2) (10 S.E.2d 32). The general rule was recognized in Andrews v. State,196 Ga. 84 (4) (26 S.E.2d 263), but it was there said that "proof of crimes of a similar nature is admissible for the purpose of identifying the defendant or for showing a common plan or purpose. . . A similar plan with similar methods in the same locality serve both to identify the defendant and to show a common plan or method." These decisions clearly state the rules of law, and there is no room for argument now as to the law. If the method or scheme employed in the commission of the crimes of similar nature were the same, this aids in identification, and proof of other such crimes is admissible.

It remains only to ascertain by an examination of the evidence whether or not the other crimes proven were similar in motive, plan, or scheme, and helped to identify the accused as the person who committed the crime for which he was on trial. The common elements are that they were all committed in the same general section of the City of Atlanta, they were attacks upon white women, and that in each a knife was employed as a means of intimidating and coercing submission. These facts bring the evidence clearly within the exception to the general rule and render it admissible under the recognized exception. It is strongly urged by counsel, however, that the occurrence at 352 Kelley Street, since the defendant was frightened by the screams of his victim and the appearance of her father, and fled without doing more than entering her room after 2 o'clock at night and exhibiting a knife and ordering her to say nothing, is so dissimilar to the crime charged in the indictment as to exclude the evidence under the general rule. A mere recital of what occurred refutes the contention thus made and shows the similarity necessary to admit the evidence.

Nor is there merit in the further argument of counsel that the requests of the jury for further instructions as to what consideration they were authorized to give the proof of the other crimes, coupled with the statement that they were in disagreement as to the sufficiency of the identity of the accused by the evidence in the case other than that relating to the other crimes. It appears that the efficacy of the evidence of the other crimes is demonstrated by the action of the jury in returning a verdict of guilty after being charged that they were authorized to consider that evidence for the purpose of discovering the motive, plan, or method in identifying the accused. There was nothing connected with the action of the jury which would render such evidence inadmissible. The amended grounds of the motion for new trial are without merit.

2. While admitting that the State's evidence established clearly and beyond doubt the commission of the crime of rape as alleged in the indictment, with the exception of identifying the defendant as the person who committed the crime, it is strongly argued that, since the victim testified that she had never seen the accused before, and that it was dark when he committed the crime, her testimony upon the trial and her action at the jail prior to the trial identifying the accused was incredible, impossible, or inherently improbable, and under the ruling made in Patton v. State, 117 Ga. 230 (43 S.E. 533), it should as a matter of law be entirely disregarded. Though the identification of the accused is not entirely dependent upon the testimony of this witness, yet it must be held that her testimony does not fall under the decision relied upon, but her ability to correctly identify the accused under the circumstances recited was a question going to her credibility, and its solution was exclusively for the trial jury. The accused was fully identified, however, by his own confession and by proof of his other crimes. The evidence supports the verdict, and the general grounds of the motion for new trial are without merit.

Judgment affirmed. All the Justices concur, except Atkinson,Wyatt, and Head, JJ., who dissent.