Climer v. State , 204 Ga. 776 ( 1949 )

1. There was ample evidence to authorize the verdict of guilty, and the general grounds of the motion for new trial are without merit.

2. Evidence as to venue, though slight, is sufficient where there is no conflicting evidence.

No. 16522. FEBRUARY 16, 1949. Travis Climer was convicted of rape. His motion for new trial, on the general grounds and one special ground added by amendment, was overruled; and to this judgment he excepted.

The State's evidence tended to show the following facts: The victim was a girl some fourteen or fifteen years of age. On May 26, 1947, she and a girl companion had attended graduating exercises at a schoolhouse in Shannon, Georgia, and were walking along the streets on their way home when a car, containing three boys and a girl, stopped beside them, and they became engaged in a conversation with the occupants of the car. The victim did not know the occupants of the car, but she and her companion were persuaded to get into the car and drive around. Two couples sat in the rear seat of the car and the victim sat in the front seat with the accused, who was driving. After they had visited two or three places, during which time the occupants, except the victim and her girl companion, drank some beer and whisky, they finally drove to a place called South Rome Barbecue at Rome, Georgia, where one couple left the car. The other occupants then left the South Rome Barbecue with the victim and the accused still sitting on the front seat of the car and the victim's girl companion and a boy named Paddy McCollum sitting on the rear seat. Thereafter, according to the testimony of the victim, the following occurred:

"After we left the South Rome Barbecue, he (the accused) just kept going down the road and said he was taking us home, but we knew he wasn't. He drove for a little while and then he stopped again off on some little road, and I don't know what road it was, and he told Marlene and Paddy that we were going to take a little walk up the road. I told him that we were not. So he got out of the car and came around and jerked me out by my arm. I tried to get away from him and he slapped me across the face, and when he slapped me across the face Marlene jumped out and started trying to help me, and Paddy jumped out and grabbed her, and Travis threw me down two or three times and I bit him on the finger and we was just fighting. Then he threatened to kill me and Marlene was screaming, and he said if we didn't shut up he was going to kill us. He told Paddy if he didn't get Marlene up to the car and leave us alone that he was going to kill her too. He then dragged me into some pine woods a little piece from the car. There he criminally assaulted me. He did have intercourse with me. It was not with my consent. I didn't let him; I tried to keep him from it. . . It was around one-thirty when I got home. When I got home mother was out looking for me, but I told her what happened when I got home. All this took place in Floyd County. When he jerked me out of the car and pulled me down to the woods, I did not walk down there by myself, he dragged me down there. When he got me down there he threw me down on the ground. He told me if I didn't pull my pants down he would kill me. So I pulled them down. That is when he committed the intercourse. He just pushed me down with his arms, I don't know how he did it exactly." She stated that, after they had returned to the car, the accused searched for a pocketbook the victim had lost; that they reentered the car, drove back to the South Rome Barbecue and picked up the girl who had been left there, and then proceeded to a point near the victim's home where, at her request, the car was stopped and she and her girl companion got out of the car.

The victim's girl companion gave the following account of what occurred after leaving the South Rome Barbecue: "The next thing I knew about it we were parked and he [the accused] told Peggy to get out and she told him she wasn't going to. The other couple had gotten out at South Rome Barbecue, Opal and Russel. No, I don't know where we stopped, I don't think it was as far as Cave Springs. He told Peggy to get out, and she told him she wasn't going to, and he reached over and opened the door and pushed her out and went around and shut the door, wouldn't let her back in. She held to the door of the car but he jerked her loose, and when he did I just yelled, and he told this boy Paddy to make me quit, and Paddy threw me down on the ground and put his hand over my mouth. Then he took Peggy down through into a pine thicket and I went down there too. He told me to go back to the car, and I wouldn't so he tried to make Paddy take me back; he said he would kill me and Peggy both. They were gone about thirty minutes after we went back to the car. . . While they at the scene of the crime were still parked Travis slapped Peggy on the face. Paddy McCollum threw me down, but he didn't try to bother me. . . Peggy was not hugging or loving Travis on the way back. She was crying all the way back. . . When we got stopped, he pushed her out from the side he was sitting on. Then he got out and went around and wouldn't let her back in the car. He shut the door. He got her by the wrist and practically drug her down there. I followed them down there. She was sitting down on the ground and he was standing up when I got down there. I stayed down there about thirty minutes, we were arguing and talking about him taking us home. Paddy was there too, but he wasn't doing anything. When Paddy threw me down, he took my wrist and threw me down and put his hand over my mouth to keep me from hollering. Then we went back to the car and left Peggy and Travis down there. When we got back we heard Peggy screaming."

An aunt of the victim testified: "I saw her at home that night. She was very nervous and upset and crying. There was a spot on her face the next day. It was on her jaw. She told her mother and myself what had happened."

The victim's mother testified that she saw the victim at about one-thirty in the morning when she returned to her home after she had been out looking for her daughter; that "she was so shocked that she was nervous and upset. No, we did not threaten her in any way. We did not do anything to her. She had a red place on the side of her face, the left cheek; it turned blue. She told me what happened to her that night. I took her to a doctor the next day." The witness then testified as to stains on articles of clothing the victim was wearing. This clothing was introduced in evidence. 1. There is no merit in the general grounds of the motion for new trial. The testimony of the victim, which established that the accused had carnal knowledge of her, forcibly and against her will, was amply corroborated by other evidence. A girl companion testified that the accused overcame the victim while she was struggling at a parked automobile and carried her into a pine thicket, where the witness heard the victim screaming, and where the victim remained for about thirty minutes; that the victim was crying when she returned to the car and on the way back to her home. There was also testimony of others as to a complaint made by the victim as soon as she arrived at her home, her physical condition immediately thereafter, including a bruise on her face, and the condition of her clothing.

Corroborating evidence need not be of itself sufficient to convict the accused, but the quantum of corroboration is left entirely to the jury. Harper v. State, 201 Ga. 10 (39 S.E.2d 45), and cit.

2. In the special ground of the motion for new trial, it is contended that the State failed to prove the venue. Evidence introduced on the trial tended to show that the crime was committed after the victim and the accused had left Rome, Georgia, had driven about six or seven miles to the Dutch Mill Steak House, or six-mile station, had turned right at that point onto the Cave Springs Road, had proceeded along that road to a point where they left the road before reaching Cave Springs and drove into the hills some three or four miles, where the car was parked. The crime is alleged to have occurred at this point.

The victim testified: "All this took place in Floyd County." But on cross-examination she admitted that she did not know whether the crime occurred in Floyd County; that she didn't know on what road or roads they had driven; that she didn't know anyone living in the vicinity where the crime was committed. The victim's girl companion testified: "I don't know where we stopped, I don't think it was as far as Cave Springs. I don't know how far he drove before he stopped. I don't think we went to Cave Springs. I don't remember we went through any town. I remember passing the Dutch Mill Steak House. We turned down there I think. I don't think we passed through any town that night besides Rome. I believe I would know it if we did." On cross-examination she admitted that she didn't know whether the scene of the crime was in Floyd County or Polk County.

Paddy McCollum, a witness for the accused, testified as to what occurred after one couple had been left in Rome: "The four of us left, went to the six-mile station at the forks and turned right and went on down the road. We turned off, left the road somewhere. We drove back into the hills, but I don't know how far we went. I do not know what county we were in when we stopped. When we got to the six-mile station, we turned right, going toward Cave Springs. We didn't ever get to Cave Springs. I don't know whether we ever got out of Floyd County. I guess we went three or four miles after we turned off the Cave Springs Road." The accused in his statement to the jury said: "We come on back over to the South Rome Barbecue; Johnston had a truck there and has a bunch of quilts and hay in it, so they said they was going to stop there and get out and get in the truck and so they did, and we went on down the road there a few miles and stopped."

A witness for the State testified: "I am familiar with Floyd County, I know where the Dutch Mill Steak House is located. It is approximately six miles south of Rome, on U.S. 27. At the forks of a road, if a person turns right on getting to the Dutch Mill Steak House, he would have to be on 411 or Cave Springs Road. A person would have to pass through Cave Springs to get out of the county on that road. Following 411, I'd say it is between 12 and 15 miles to the county line from the Dutch Mill going out that road. It would be about 12 miles. It is about seven miles from the Dutch Mill Steak House to Cave Springs; about twelve miles that way to the county line. Yes, there are mountain roads that a person could take and get into Polk County without going through Cave Springs. It is a rather roundabout way, but you can turn left down beyond Cunningham Station."

The foregoing testimony comprises all the material evidence on the question of venue. It will be noted that the uncontradicted evidence was to the effect that from the Dutch Mill Steak House to the county line on the Cave Springs Road was approximately twelve miles; that on that road it would be necessary to pass through Cave Springs and drive about five miles beyond in order to reach the county line, and any other route would be a "roundabout way" by mountain roads. All of the evidence was to the effect that the car in which the parties were riding left the Cave Springs Road before ever reaching Cave Springs, and then went into the hills a few miles, the only evidence as to distance being by a witness for the accused who fixed the distance at three or four miles.

If the jury believed, as they had a right to do, the State's witness who fixed the distances necessary to travel to get out of Floyd County, and the witness for the accused, who fixed the distances that had been traveled, the jury could have reached no other possible conclusion than that the parties had never left Floyd County when the crime was committed. The natural and reasonable inferences and deductions to be drawn from the evidence in this case were that the crime was committed in Floyd County. There was no evidence or anything in the defendant's statement indicating that the crime was committed elsewhere than in that county.

"Evidence as to venue, though slight, is sufficient where there is no conflicting evidence." Baker v. State, 55 Ga. App. 159 (189 S.E. 364); Porter v. State, 76 Ga. 658 (2), 660; Johnson v. State, 62 Ga. 299 (1); Womble v. State,107 Ga. 666 (3) (33 S.E. 630). Applying this rule to the instant case, we are of the opinion that the evidence was sufficient to establish the venue as laid in the indictment. Compare Dumas v. State, 62 Ga. 58 (4); Smiley v. State, 66 Ga. 754; Dickerson v.State, 186 Ga. 557 (2) (199 S.E. 442).

Judgment affirmed. All the Justicesconcur.