Harper v. State , 201 Ga. 10 ( 1946 )

1. Under an indictment charging rape, a charge on the law of assault with intent to commit rape is not authorized when the evidence shows a full accomplishment of the crime charged, and there is no evidence of an assault not included in the perpetration of the offense. In such circumstances a verdict of assault with intent to commit rape would be contrary to evidence and without evidence to support it.

2. Though it is ordinarily inapt in a criminal case to give in charge the Code, § 38-107, and in such cases it is the better practice never to do so, the instruction is not reversible error if harmless, as here. The complaint is that the charge omitted from this section the provision that the jury may consider "their means and opportunity for knowing the facts to which they testify." The omission was not hurtful, and the court was not required to enumerate every item in the section.

3. The evidence was amply sufficient to support the verdict, and the jury was satisfied with the sufficiency of the corroboration, as the quantum required, assuming that corroboration was necessary in this case.

No. 15514. JULY 3, 1946. Will Harper was convicted, without recommendation, in Fulton Superior Court, of the rape of Mrs. Frances Moore. To the overruling of his motion for new trial on the general grounds, as amended by three special grounds, he excepted. On the trial the evidence was substantially as follows:

Mrs. Frances Moore, the prosecutrix, testified: On Saturday night, August 25, 1945, she was at home on 418 Pryor Street, Atlanta, Fulton County, Georgia, with two of her small children, one six months and the other three years old. Her other child, aged 9, was in a hospital. Her husband was in the Army. That evening she was lying across her bed reading when someone knocked on her door and called "Western Union" or "telegram." She opened the door to find the defendant there, who said he wanted a match. She told him that she did not have one, and he then said that it was she whom he wanted, and immediately came into her room, grabbed her by the arm, bent it back and threw her across the bed. He hit her in the stomach, rendering her powerless to do anything. She tried to fight him off but couldn't, and he had intercourse with her against her will and without her consent. She tried to fight him off to prevent it but couldn't. He completed the act of intercourse. She was wearing a gown and house coat at the time. The coat was loosely fastened and in jerking it open it was torn a little. She attempted to make an outcry but didn't know for sure whether she screamed. He ran after completing the intercourse. As soon as she was able to get to her feet, she "slammed" the door, he ran out another door of her room into the yard, and she "screamed for help." She told two women whom she did not know that a negro had attacked her and asked them to call the police. She did not tell them at first that she had been attacked. A crowd of people soon gathered in her yard. In a short while the police came. She reported that she had been attacked, but did not tell them at that time that she had been raped. After the crowd began to leave, Mrs. Arnold took her and the two children to her home where they spent the night. She "got a glimpse" of the defendant the next Monday afternoon, but did not report it. The following Thursday she saw him again on the street in front of her house, and told her husband to follow him. The police later brought the defendant to her home, with other negroes, and she identified him as the man who had attacked her. The following Tuesday she identified him again from a line-up at the police station. She positively identified the defendant as the man who attacked her. Her two children, who were asleep, were the only other persons in her home when she was raped.

On cross-examination, she testified that she thought the defendant lived in the second house below her. She could not say whether she had seen him around there before, but possibly had since a lot of colored people used her yard as a pathway. Her home was formerly used as a "drive-in," and was located back from the street. She didn't know whether it was a hundred feet or not. Colored and white people lived in the adjoining two-story building. She had only talked to a couple of negro women there when she wanted some work done, but did not know their names. She had visited up and down a corridor between the buildings at 414 and 416 Pryor Street where the negroes enter and go out. Her husband arrived home on Monday following the rape, and she told him what had occurred as soon as he arrived. She remembered the defendant by his face. She had a light over her bed, which he pulled out after he came in the room, but it was on long enough for her to see and recognize him. After her husband came home and she had to tell him what happened. she was completely unconscious, raving, for approximately a week. She knew a negro woman named Mary, but did not talk to her at all the night when she was raped. The day after the rape she stayed at home all day typing letters, and did not talk to any of the colored people. She did not tell anyone that the defendant only touched her on the arm but did not have intercourse with her.

I. A. Thomas testified for the State: He was a detective for the City of Atlanta, on duty August 25, 1945. In a minute or so after receiving a report, he went to the residence of Mrs. Moore. She was hysterical and very upset when he arrived and acted like she was "scared about half to death." He had to get her quiet before he could get much out of her about what happened. She made a report to him and gave a description of her assailant and he began to search for someone. He saw the defendant for the first time on August 30 at the police station. Later he requested Mrs. Moore to come down for the purpose of identifying her assailant, and without any indication as to which one had been arrested as a suspect, she immediately pointed out the defendant, from a line-up of six, as the man who had attacked her.

Mrs. Emily A. Moses testified for the State: She received a report about the excitement at the Moore home and telephoned it to the officers.

Mrs. Jessie Arnold testified for the State: Mrs. Moore sent for her on the night of August 25. She did not know how long it was after the rape before she saw Mrs. Moore. The yard was full of people when she arrived. Mrs. Moore was in a "nervous rage," "crying and wringing her hands," and told her what had happened. After the excitement had subsided, she took Mrs. Moore and her two children home with her. They stayed there until the following morning.

Robert J. Tweedell testified for the State: He went with his sister, Mrs. Arnold, to Mrs. Moore's house. Several people were in the yard. Mrs. Moore did not mention any name that night as to who had raped her. He did not remember any specific description which she gave of the person who had raped her. He spent the night in Mrs. Moore's house.

D. S. Harris testified for the State: He was a city policeman. In answer to a call, he went to a place on Pryor Street, picked up the defendant and two other negroes, and took them before Mrs. Moore, who, before anyone spoke, and as soon as they walked into her room, pointed out the defendant as the man who had attacked her. Only Mrs. Moore, her husband, and an elderly-like woman were in the room at that time. A negro woman was standing in the yard about 15 feet from the door. He answered the call on the night of August 25, and Mrs. Moore told him that the defendant had come to the door, grabbed, and attacked her, but did not tell him that the defendant had intercourse with her.

On cross-examination, he further testified that when he answered the first call Mrs. Moore told him that her assailant had broad shoulders, but did not say anything about him being very black or having a hand missing. She said at that time that he had grabbed her but did not attack her, that he did not consummate the rape, and that he did not have sexual intercourse with her. Later the witness testified that she did not say that he did not have intercourse. She did not say that he did not have intercourse, and she did not say that he did. She said that he had attacked her. He did not know what she meant by "attacked her." He did not ask her if there was a penetration. He did not recall having testified before that she had said that he did not have intercourse. He did not think that he did. Mrs. Moore's house is between 50 and 75 feet from the street.

The defendant relied on the defense of alibi, and introduced evidence to show that he was sick on the night of August 25, and at home in bed at the time of the alleged rape. He also offered witnesses, who swore that Mrs. Moore had made statements to the effect that the rape had not been consummated.

Mrs. Katie Phillips testified: She lived at 416 Pryor Street. Two or three nights after the alleged rape, she visited Mrs. Moore, who was sick and had a nervous breakdown. Mrs. Moore told her that she should have been there when a negro broke in on her and when she had all the law down. She said that he only caught her by the arm but did not hurt her. She did not ask her any more about it.

Mary Evans, a colored woman, testified: She lived at 412 Pryor Street. On the evening of August 25, Mrs. Moore asked her to come over to her home. She did not know what time it was, but thought it was about 8:30 or 9 o'clock, 7:30 or 8 o'clock. She was the first one to see Mrs. Moore before she called the police. Mrs. Moore told her that a "damned negro" knocked at her door and asked for a match, but she did not give it to him. She told her that he was a tall, black, broad-shouldered man, and that he did not get in. She did not tell her that he touched her anywhere. Mrs. Moore had on shorts and a brassiere, but changed into a gown and bathrobe before the officers arrived. She said to Mrs. Moore, "You have been drinking." Mrs. Moore said that she had drunk a bottle of beer and asked her if she wanted one. She told Mrs. Moore that she did not drink. Mrs. Moore said that she was going to call the law. When she went to Mrs. Moore's house, on returning home she saw the defendant in his home and in bed. She could see him through an open door. She then met the police as they were going to Mrs. Moore's house. She was at the Moore home, when the defendant was arrested and brought before Mrs. Moore, and heard her say "He was darker shaded than that man, but he is the description of the man that knocked on my door." When Mrs. Moore said this the police had gone.

Mrs. Carrie Chapman testified: She lived at 416 Pryor Street, and that the reputation of Mrs. Moore in that community was bad. The people who said her reputation was bad talked about the bloomers and brassiere she wore. She did not have anything to do with her. She was on the sidewalk in front of her door when Mrs. Moore came running out to the street and told some ladies that a negro had been there and had hold of her and he was a tall, black negro with broad shoulders. On cross-examination, she testified that she had a fuss with Mrs. Moore about some water that was thrown on the yard. Mrs. Moore's children threw some rocks through her window.

Annie York testified: On the night of August 25 she was at the defendant's house from about 6 until about 10 o'clock, and the defendant was at home sick in bed between those hours.

The defendant, in his statement to the jury, said: "I don't know anything about it, no more than what I hear. The night when that happened I was at home in bed, and my old lady asked, did I hear that fuss over there, and I told her ``No.' I come home that evening, and I got too hot that Friday; I tried to work that Saturday, and I got too hot and I come in and went to bed away before dark, and I come back Sunday morning and went back to bed, and that racket they have over there, I didn't pay it no attention. In fact, I didn't think anybody lived there. It was an old drive-in place. I did hear boys around there a lot of nights when I come in, white boys, you know, going on, and I didn't pay it no attention, and I heard a woman holler one night, and I was sitting down eating supper and my wife said, ``Did you hear that noise over there?' and I said, ``What, what is it?' She said, it was a lady over there and somebody scared her, and I said ``Well, you ought to do something for her,' and a little bit later on some cars come down there, and I just thought it was a club over there or something, I heard so much fuss over there. I really heard so much and I just didn't pay it no attention.

"But this night that happened I got too hot on the job and come in and went by Five Points up there at Jacobs, and got me some rhubarb and calomel capsules, and come home and went to bed before dark; these people talking about it, they know more about it than I do. I just come home and heard that fuss. I didn't pay it no attention because it wasn't my business.

"The evening I come in I went up across the street there and bought me a watermelon and I come back, and the man standing out there — I guess it was her husband — he looked like he was about drunk to me, and I might have touched him with the watermelon and he hollered to me, he said I will get even with you, and I went down there with the watermelon and set it down on my steps, me and another fellow; and in just a little bit he come down with the police, and said, ``Get both of them;' and he said, ``Come up there, I want you to prove something, and I said, ``O. K., yes, sir,' and I was the first man got started up there in a hurry. I thought something had happened and I come up there and she was laying in bed and had her back turned toward the front door and I just went on in the house. I said ``I want her to see me good,' and she turned over and shook her head this way and said, ``No, the man was darker than he is.' She turned over again and said the same thing.

"Well, the police just said, well, ``Oh, let's go, we ain't got no time for foolishness,' and he just hollered out, ``Why don't you say it is him?' and finally she just raised her head and said, ``It is him.' That is just exactly the way it was. They arrested me and carried me to the station house, and quite naturally he made her say I was the man, just that way. I think him and her scrap and fight all the time and he made her say just what she said because she didn't want to say.

"I never seen her before, I didn't know nobody lived there. I hear them around there drinking and going on, boys. It is an old drive-in club, it ain't no dwelling house. . . I am an old man, I am 55 years old, and I am accused of something I don't know any more about than either one of you all."

Willie Rose Spencer testified: On the night of August 25, she was visiting the defendant's wife and saw the defendant, who was sick in bed. About 20 minutes after she arrived at his home, she heard a racket and saw people gathering on the street. She saw a tall, black man, with his arm off, run behind a signboard. Mrs. Moore told her then that a dark negro came to her door and asked for a match, but that he did not get into her house. She then went back by the defendant's house, and he was still in bed. 1. The contention in special ground 1, that the court erred in failing to charge the jury on the law of assault with intent to commit rape, is without merit. "No person shall be convicted of an assault with intent to commit a crime . . when it shall appear that the crime intended, or the offense attempted, was actually perpetrated by such person at the time of such assault or in pursuance of such attempt." Code, § 27-2508; Andrews v.State, 196 Ga. 84 (12) (26 S.E.2d 263); Rider v.State, 195 Ga. 656 (25 S.E.2d 304); Gorman v. State,183 Ga. 307 (5) (188 S.E. 455); Rich v. State, 160 Ga. 513 (128 S.E. 666); Welborn v. State, 116 Ga. 522 (42 S.E. 773); Harris v. State, 101 Ga. 530 (29 S.E. 423);Johnson v. State, 73 Ga. 107; Kelsey v. State, 62 Ga. 558. In the Wellborn case, supra, it was said: "Under an indictment charging a person with rape a verdict finding him guilty of assault with intent to commit rape is unwarranted, and contrary to the evidence, when it appears that some of the witnesses testified to the full accomplishment of the crime charged, and none of them to an assault not included in the perpetration of the offense." It is urged here that the prosecutrix, Mrs. Moore, following the commission of the alleged offense, made a declaration contradictory of her evidence, to D. S. Harris, a witness for the State, to the effect that, while the defendant made an attack on her, yet the offense of rape was not actually consummated. In Canida v. State,130 Ga. 15 (60 S.E. 104), this court said: "The testimony of a witness that the prosecutrix said ``someone had attempted to assault her' was not evidence authorizing a charge on the law of assault with intent to commit a rape, as such testimony was merely hearsay and of no probative value, though it might have been considered on the question of impeachment of the prosecutrix, had the proper foundation been laid." And again, inRich v. State, supra, it was held: "While it was competent on the trial to impeach the witness, when she testified the crime of rape was actually perpetrated, by showing that she first swore out a warrant against the defendant for assault with intent to rape, and that she had stated to a female acquaintance a few minutes after the occurrence that the defendant did not ``accomplish his purpose,' this impeaching evidence could not be substantive evidence upon the trial upon which to rest a conviction for the crime of assault with intent to rape." We think that the holding in the Rich case, supra, is clearly applicable to the facts in this case; and assuming that the prosecutrix made statements as contended, they could have been considered by the jury only as impeaching evidence and, being admissible only for that purpose, did not require or authorize a charge on the law of assault with intent to commit rape.

2. A special ground complains because the court, in charging on credibility of the witnesses, failed to instruct the jury that in determining the credibility of the witnesses they may consider "their means and opportunity for knowing the facts to which they testify." On the question of credibility the court charged: "The law makes you the exclusive judges of the credibility of the witnesses, and you have the right in passing upon this question to take into consideration all the facts and circumstances surrounding this case. You have the right to consider the manner and deportment of the witnesses on the witness stand as they testified in your presence, and you may consider the intelligence or want of intelligence of the witnesses, their interest or lack of interest in the case or its outcome, and you may consider their bias or prejudice if there be such in the case; you may consider the reasonableness or unreasonableness of their testimony, the probability or improbability of the facts testified about, the nature of the facts testified to, and you may consider the personal credibility of the witnesses insofar as they may legitimately appear here upon this trial." This charge is in substantial accord with the Code, § 38-107, which states the method of determining where the preponderance of evidence lies in civil cases. While it is ordinarily inapt to charge this section in a criminal case, and in those cases it would be better practice never to do so, such a charge is not ground for reversal if the instruction appears to be harmless.Andrews v. State, 196 Ga. 84 (13) (supra); Grant v.State, 122 Ga. 740 (5) (50 S.E. 946); Gale v. State,135 Ga. 351 (5) (69 S.E. 537); Helms v. State, 138 Ga. 826 (5, 6) (76 S.E. 353). It is insisted that, since the court undertook to give the section in charge, it was error not to give it in its entirety. However, it must be remembered that the court was here charging, not on the preponderance of the evidence, but on the credibility of witnesses, and was not bound to enumerate to the jury every item in the Code section applicable to civil cases in determining where the preponderance of the evidence lies. Andrews v. State, supra; White v. State, 147 Ga. 377 (94 S.E. 222); Schumpert v. Carter, 175 Ga. 860 (5) (166 S.E. 436); Garner v. Wood, 188 Ga. 463 (3) (4 S.E.2d 137); Sconyers v. State, 67 Ga. App. 902 (3) (21 S.E.2d 504). In the case at bar the court charged: "You have the right in passing upon this question [credibility] to take into consideration all the facts and circumstances surrounding this case," and then enumerated substantially the matter which they might consider, as contained in the Code section. The use of this language did not limit the jury, in passing on the credibility of witnesses, to a consideration of those things enumerated, or tend to exclude from the consideration of the jury those not so enumerated. The jury were left free under the charge to determine the question of credibility from all the facts and circumstances of the case, and the criticism directed against the instruction is without merit.

3. Special ground 2, like the general grounds, questions the sufficiency of the evidence to support the verdict, and for that reason we deal with them together. By the special ground it is contended that the verdict is contrary to the evidence and without evidence to support it, because: (1) It was not shown by the testimony that the prosecutrix was prevented from making an outcry, or that she did any overt act to prevent the accomplishment of the alleged crime; (2) the evidence fails to show sufficient resistance on the part of the prosecutrix, or that she was so overpowered that she could no longer resist; and (3) there is not sufficient evidence to corroborate the testimony of the prosecutrix as to the commission of the alleged offense. We do not believe it necessary here to recapitulate the evidence. The testimony of the alleged victim, if believed by the jury, was amply sufficient to show that the defendant had carnal knowledge of her, forcibly and against her will. She gave positive testimony that while at home at night with her two small children, one just a few months old, the defendant caused her to open the door when he called "Western Union" or "telegram;" that he first requested a match, and then stated that it was not a match which he wanted but her; that he then entered the room, seized her by the arm, threw her on the bed, rendered her powerless by striking her in the stomach, completed the act of intercourse while he held her, and then immediately field from her room. She positively identified the defendant as her assailant. Alibi was urged as the defense. Assuming it to be still the rule, as held by a majority of the Justices in Davis v. State, 120 Ga. 433 (48 S.E. 180), that there can be no conviction of any rape unless the testimony of the female is corroborated, we will follow that decision in the present case. What do we have here in the way of corroborative evidence? An immediate outcry and request that officers of the law be called. When first seen by the officers she was hysterical and "awfully upset," so much so that it was necessary to get her quiet before she could tell what had happened. Her call for help caused many of her neighbors to gather at her home and begin an immediate search for her assailant. When Mrs. Arnold, a neighbor who frequently visited Mrs. Moore, arrived, the prosecutrix was in a nervous rage, crying and wringing her hands, and informed her what had occurred. She told her husband what had happened immediately on his arrival. This court has frequently held that the corroborating evidence need not be of itself sufficient to convict the accused, but the quantum of corroboration is left entirely to the jury. Lee v. State, 197 Ga. 123 (28 S.E.2d 465); Wright v. State, 184 Ga. 663 (190 S.E. 663);Suber v. State, 176 Ga. 525 (2-a) (168 S.E. 585); Smith v. State, 77 Ga. 705 (2-a), 713. In Davis v. State, supra, it was said: "The accused should not be convicted upon the woman's testimony alone, however ever positive it may be, unless she made some outcry or told of the injury promptly, or her clothing was torn or disarranged, or her person showed signs of violence, or there were other circumstances which tend to corroborate her story." Speaking for myself, I do not think that corroboration was necessary, but the judge gave a full and complete charge on that subject, and the jury by their verdict expressed their satisfaction as to its sufficiency. The verdict, being abundantly supported by evidence, having the approval of the trial judge, and no errors of law appearing, will not be disturbed by this court. All of the exceptions are without merit.

Judgment affirmed. All the Justices concur, except Head, J.,who dissents.