David v. State ( 1977 )

McMurray, Judge.

The defendant was convicted of aggravated assault by reason of an assault with intent to rape. The appeal here is based upon two enumerations of error, that is, a charge on flight where there allegedly was no evidence of flight, and the failure of the court to charge without request on the good character of the defendant. Held:

1. The uncontested evidence is that the defendant picked up the prosecutrix after her automobile developed tire trouble on the road; that he then proceeded to drive her to work; and that in the process defendant made sexual advances in which he touched her. The defendant testified that he asked her "if she would go to the bushes and she said no ... I touched her on the leg or somewhere in there. I reached over and she pushed my hand away and wanted out of the car. She started struggling and kicking the door.” The prosecutrix testified that the defendant "grabbed” her two times in her "vaginal area” and told her several times he was going to rape her. She testified that she attempted to leave the automobile, grabbed the steering wheel and the gear shift, and after the car was almost stopped, she jumped out of the car and began running or walking up the highway towards her place of employment. Defendant was later found by investigating officers at his place of employment where the victim told them defendant worked. Although the jury may have concluded that defendant did not leave the scene due to a guilty mind, there was evidence of his departure from the scene to drive on to work after the prosecutrix left the car to walk to work. The charge on flight was therefore authorized, since the court fully instructed the jury it was to determine whether or not the defendant’s departure from the scene was due to a sense of guilt or for other reasons, and if for other reasons, "no inference hurtful to the defendant should be drawn by the jury.” See in this connection Nolan v. State, 129 Ga. App. 653, 655 (3) (200 SE2d 474); Fountain v. State, 149 Ga. 519, 528 (7) (101 SE 294); Byers v. State, 236 Ga. 599, 600 (2) (225 SE2d 26). Defendant testified he left the spot where the prosecutrix departed the automobile to proceed on to work, albeit she testified she jumped from the automobile as it slowed down and he then proceeded down the road. Thus, it became a jury question as to the reason why defendant left the scene. McKuhen v. State, 102 Ga. App. 75, 76 (115 SE2d 625).

2. It is well settled that good character of the accused is a substantive fact, and evidence of such character should be weighed and considered by the jury in connection with all other evidence in the case. Still, such good character of the accused is not a distinct substantive defense. Seymour v. State, 102 Ga. 803 (30 SE 263); Spear v. State, 230 Ga. 74, 76 (1) (195 SE2d 397). Generally, in the absence of a proper written request to charge on the character of the accused it is not cause for a new trial when nó such charge was given, and it is only in exceptional cases where the court fails to charge relative to the good character of the accused that a new trial will be granted. Widner v. State, 197 Ga. 542, 545 (30 SE2d 97). The case sub judice falls within the general rule, and not within the exception. Scott v. State, 137 Ga. 337 (3) (73 SE 575); Spear v. State, 230 Ga. 74, 76, supra.

In the absence of a proper written request to charge on good character the failure of the court to charge thereon was not reversible error.

Submitted May 3, 1977 Decided September 12, 1977 Rehearing denied October 13, 1977 J. H. Affleck, Jr., for appellant. Harry N. Gordon, District Attorney, B. Thomas Cook, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Quillian, P. J., Webb, Smith, and Shulman, JJ., concur. Deen, P. J., Banke and Birdsong, JJ., concur specially. Bell, C. J., dissents.