Chastain v. State , 62 Ga. App. 192 ( 1940 )

1. A defendant may not be convicted of an attempt to commit a crime when the evidence is conclusive that the criminal act was consummated. A victim may testify that the prisoner "raped her," but her testimony is not conclusive as to the consummation of the act where there is other evidence which makes it doubtful, and where the defendant in his statement admits the attempt to commit a sexual act, and states that although the victim was willing he was unsuccessful in performing the act. The testimony of the victim is not conclusive as to this essential factor in the crime of rape, where an issue is made thereon by the evidence and the defendant's statement.

2. The jury was authorized by the evidence in this case to find that the defendant attempted, by force and against the will of the victim, to have carnal knowledge of her person, and to find that no carnal knowledge was had of the victim's person. The judge was authorized to charge on the subject of an assault with intent to rape, and the jury was authorized to find the defendant guilty of this offense, the evidence as to the commission or consummation of the crime of rape not being conclusive.

3. Rape and carnal knowledge are themselves technical terms. Penetration or entrance is an essential ingredient of the crime of rape, and must be proved to the satisfaction of the jury, under proper instructions. Evidence which makes this essential ingredient doubtful may prevent a conviction of rape, but authorizes a conviction of assault with intent to rape. Yancy v. State, 173 Ga. 685 (4) (160 S.E. 867); Byrd v. State, 28 Ga. App. 504 (111 S.E. 924).

DECIDED MARCH 15, 1940. REHEARING DENIED MARCH 30, 1940. The victim testified substantially as follows: A friend had invited her to have supper and the defendant came to carry her in an automobile to the friend's home. She did not know the defendant, and would not go with him at first. He told her he was all right because her friend would not have sent him for her if he were not; and she went with him. They started out on the road toward the friend's house, but afterward turned around and started toward Elberton, to which she objected. He first stopped the car on the side of the road about four miles from Elberton. "He slipped over right close to me and grabbed me. I told him I wanted to get out there and wanted to go back home. . . He said, ``We are going to the picture-show anyway.'" He then started off, and stopped a second time about a mile from the place where they had first stopped. "The second time he stopped he stopped on the side of the road, and he just slipped right close to me and grabbed me. I holloed. He put his hand over my mouth, and told me not to hollo any more — that he would kill me if I did. And I holloed anyway. . . We stopped there a pretty good while, and he knocked my head against the car — the side of the car, and he twisted my wrist, . . and he cursed me. . . He wasn't drinking any at the time, and wasn't under the influence of intoxicating liquor. Then he just grabbed my dress and pulled it up, and I commenced screaming. While he was pulling my dress up I was screaming, and he didn't have his hand over my mouth. About that time a car came along, and I holloed at the car, and the car stopped above our car. When it started I holloed again, and it back-backed. He said, ``If you stop, I will kill you.' He was speaking to the Negroes in the car, but I didn't know who they were. When he told them that they went on." The next place he stopped was on the Falling Creek bridge toward Elberton, and "he choked me and tried to smother me, and he cursed me. I tried to get out of the car, and he wouldn't let me get out anyway I tried." He next stopped in front of Mr. Rough's house on this side of the bridge toward Elberton, and he again attempted to have intercourse with the witness. He left there and stopped again on the other side of Mr. Hutchins's. He tore her dress, and "He finally got me down there in the car on the front seat. We stayed there about thirty minutes." He weighed about 175 pounds and she weighed about 114. "When the car stopped [on the other side of Mr. Hutchins's] I was on my side, and he was under the steering-wheel, and he took me up and dragged me across his lap, and I got under the steering-wheel, and he got on my side, and he put my arm through the steering-wheel. He tried to throw me back, and I scuffled with him a while, and he finally got my back on the seat and me down on the seat. He got me down — threw me down on the seat, and he raped me when he got me on the seat. . . I scuffled with him all the time until he got me to where I couldn't scuffle. He held me down, and I couldn't do anything. I didn't yield to him, and never did yield to him. . . This intercourse happened on the front seat of the automobile at the time he actually ravished me. . . At the time this act of intercourse took place the door of the car wasn't open on the front seat; the car was closed." During the trip "he stopped on the road five or six times and every time the proceedings were interrupted by passing automobiles." She testified that after he allegedly ravished her, he drove on to her house and put her out about thirty yards from the house, and it was still raining.

In his statement the defendant said that on the occasion of this automobile ride he stopped twice, and on each of these occasions she was willing for him to have intercourse with her, and that although "I got on my knees and unbuckled my belt and pulled down my pants . . I lay there some ten or fifteen minutes. . I couldn't get up courage to have intercourse with her." He stated that he never at any time attempted to have carnal knowledge of the witness forcibly and against her will, nor did he actually perpetrate the crime of rape, nor did he ever actually have intercourse with her. Other witnesses corroborated her statements as to time and place, and the fact that they heard a girl screaming in an automobile which was passing the witnesses. On being carried home by the defendant she immediately reported the matter to her mother. She was crying, and there were bruises on her arm and scratches on her leg and neck, and her garments were torn. She was carried to a doctor within two hours from the time she reported the matter to her mother, and the doctor examined her. He testified: "In the examination of [the young lady] I found no bruises or abrasions or swelling about the labia; there were no bruises about the vagina; there were no bruises, contusions, or redness or swelling about the lips of the female organ. She had slight bruises on her left arm. . . The only scratches I noticed were on each leg on the inner side. I made as thorough examination as I could without making a microscopic examination. I have no doubt in my mind as to what I have testified to. . . I saw no bruises or contusions which would indicate sexual intercourse." The victim, on cross-examination after having testified that "he raped me down on the seat," was asked what she meant when she said "he raped me." She replied: "I don't know — he raped me; we stayed there about fifteen minutes after he got me down on the seat, and we left." It was also shown that a warrant sworn out on the same night was for an "attempt of rape," though this was explained by the justice of the peace as a mistake in issuing the warrant.

Complaint is made that the court erred in charging the jury on assault with intent to rape, as it was contended that the evidence showed conclusively that a rape was committed on the female. The first case cited in support of this position isKelsey v. State, 62 Ga. 558, 559. The court said: "The evidence showed that intercourse was had between the parties, the points of contest being whether the defendant used force," and "There is absolutely no evidence of an unsuccessful attempt — of a mere assault with intent to commit a rape. . . There was either rape or fornication." In such a case a verdict of attempt to rape would have been without evidence to support it, for the reason, as stated, that "the evidence showed that intercourse was had between the parties," thus showing conclusively that carnal knowledge had been realized. In the present case the defendant admitted that he had tried to have carnal knowledge, but was unsuccessful. The doctor testified that from an examination made within three hours of the alleged rape he saw nothing toindicate that the victim had had sexual intercourse. While it is true that the victim testified that she was raped, she said also she did not know what she meant when she said "he raped me." The defendant's statement and the doctor's testimony prevented the evidence of the State from being conclusive of the fact that a sexual intercourse was had between the victim and the defendant. A portion of the victim's evidence certainly supported a verdict of assault with intent to rape. The jury were authorized to accept that portion and reject the other parts of her evidence, which were not conclusive, that the act had been completed. An analysis of the facts reported in all the cases cited in the brief of the plaintiff in error will disclose that there was presented either an entire denial by the defendant of the whole occurrence or a defense that the act done was with the consent of the female, the statement being made that the evidence as to the commission of the acts was conclusive. In Welborn v. State, 116 Ga. 522, 524 (42 S.E. 773), it was said: "No evidence was had as to any criminal assault save that which was included in the commission of the rape." In Rich v. State,33 Ga. App. 153 (126 S.E. 154), it was said: "Though the person outraged swears that the crime of rape was actually committed by the prisoner, yet where an attempt is made to impeach her testimony, and her age and the circumstances surrounding the criminal act render her testimony on this subject doubtful, the jury may disregard it and find the accused guilty of an assault with intent to rape, there being overwhelming evidence of such assault." We think this language peculiarly applicable to the evidence in this case. The evidence as to the actual commission of the act in this case was certainly not conclusive, as in the cases cited, but was overwhelming as to the fact of the assault for such purpose. A girl eighteen years old is persuaded by a false statement made to her to enter an automobile with a married man thirty-one years old, to go to a friend's house. The defendant admits making an attempt to have sexual intercourse with the victim. He states that it was with her consent. Her evidence, which is amply corroborated in time and place and other circumstances, is that his advances were unwelcome, and that force was used in attempting to have connection with her. Her testimony as to what she meant by "he raped me" is not clear. A young and innocent girl subjected to such treatment as, according to the evidence, she received on this occasion may well have believed that she had been raped, when in fact the act had not been consummated. The doctor's evidence, together with the defendant's statement, was sufficient to prevent her evidence from being conclusive as to the consummation of the act. We think the evidence amply authorized the verdict, and warranted the charge given to the jury by the court.

Judgment affirmed. Broyles, C. J., concurs.