Derr v. State , 239 Ga. 582 ( 1977 )

239 Ga. 582 (1977) 238 S.E.2d 355

DERR
v.
THE STATE.

32596.

Supreme Court of Georgia.

Submitted July 29, 1977. Decided September 7, 1977.

Oehlert, Kermish, Labovitz, Marcus, Brazier & Rosenberg, Stephen A. Kermish, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, Arthur K. Bolton, Attorney General, William B. Hill, Jr., for appellee.

HALL, Justice.

Appellant, Robert Odell Derr, appeals from his conviction of rape and sentence of twenty years. He admitted the act of sexual intercourse; the sole issue was the question of consent.

1. We have carefully reviewed the evidence and find that it supports the verdict. Lack of resistance, induced by fear, is not legally cognizable consent but is force. Curtis v. State, 236 Ga. 362, 363 (223 SE2d 721) (1976).

2. The appellant contends that the trial court erred in allowing testimony of the outcry because when first approached by a police officer in the presence of the appellant, the victim stated that nothing was wrong. However, the victim did make a declaration, approximately four minutes after leaving the scene of the rape to the first friend she encountered, that she had been raped. She thereafter informed her husband, doctor, and the police that she had been raped. The victim's doctor testified that she was in emotional shock at the time. See, Overton v. State, 230 Ga. 830 (199 SE2d 205) (1973); Conoway v. State, 171 Ga. 782 (156 SE 664) (1931).

Judgment affirmed. All the Justices concur.