Hodge v. State , 239 Ga. 612 ( 1977 )

Per curiam.

Appellant was convicted of the forcible rape of a fifteen-year-old girl and was sentenced to fifteen years in prison.

1. In support of his argument on the general grounds, appellant maintains that there was no evidence of force sufficient to support the jury’s verdict.

The 15-year-old victim testified that, at the time of the rape, her two and one-half year old niece was present. She testified that the infant approached the appellant at the inception of attack; that appellant pushed the infant down; and that the infant began to cry. Appellant threatened harm to the infant if the victim did not submit to his attack. The fact of penetration resulting in lacerations, bleeding, and bruising was established by medical testimony.

In light of this evidence, the jury was authorized to find that the victim did not consent, and that her resistance was overcome by her fear for her own safety and the safety of her infant niece. Curtis v. State, 236 Ga. 362 (223 SE2d 721) (1976); Pierce v. State, 230 Ga. 766 (199 SE2d 235) (1973). The general grounds are without merit.

2. Appellant claims that he should be given a new trial because the court below admitted, over strenuous objections, evidence of various occurrences which he claims put his character in issue. Code Ann. § 38-202.

The victim’s sister, who was acquainted with the appellant, was allowed to testify that appellant once told her "that if he had the opportunity he wanted to make love to me.” She also testified that shortly after the alleged rape occurred, but before it was reported, appellant, without provocation, pinched her "on her rear.” Finally evidence was also admitted that, approximately one and one-half months prior to the day of the rape, appellant gave a married woman a book that was characterized by both the woman and the district attorney as obscene, after she had remarked to him that she liked to read "trash.”

The trial court erred in admitting the above evidence. It was irrelevant evidence "to show motive, bent of mind and course of conduct,” specifically, rape. However, the error in admitting this evidence was clearly harmless because it cannot be said that it. is highly probable that this irrelevant evidence contributed to the conviction of rape. Johnson v. State, 238 Ga. 27 (230 SE2d 849) (1976).

3. Appellant maintains that he was denied his right to a "thorough and sifting” (Code Ann. § 38-1705) cross examination of a state’s witness. The witness was a prisoner, who was serving a four-year sentence for attempted forgery of a drug prescription. The state had made a deal with him, to recommend that his sentence be reduced to twelve months to serve in either the Cobb County Works Camp or the Cobb County Adjustment Center. In return the witness had agreed to be placed in appellant’s cell for the purpose of obtaining information regarding the crime, and to testify as to any such information obtained. All this was explained to the court and the jury prior to examination of the witness, and appellant was given notice of this prior to the trial.

Submitted May 13, 1977 Decided September 8, 1977. Paulk & Kearns, Ralph W. Kearns, Jr., for appellant. Thomas Charron, District Attorney, Adele P. Grubbs, Assistant District Attorney, Arthur K. Bolton, Attorney General, for appellee.

The witness testified that appellant, at one time, told him he wanted to plead guilty so he could "get out in five years” and return to his family. The witness also stated that appellant told him that his girl friend wanted him to take his chances on a jury trial, and try for an acquittal.

We note that there was no objection raised at trial or in this appeal to the introduction of this testimony. The only question before us is whether the trial court erred in sustaining an objection, made by the state, to a single question asked during the cross examination of this witness. The question asked was: "Do you know that when you go out there [The Cobb Adjustment Center] you are out about three weeks, do you understand that?” The state interposed an objection that this question assumed incorrect facts regarding the length of time persons stay at the adjustment center. The court sustained the objection with the admonition "I think you are going too far.” Counsel for appellant made no response to this objection and ruling, but merely continued the cross examination.

The scope of cross examination lies largely within the discretion of the trial court and will not be disturbed absent a showing that this discretion has been abused. Davis v. State, 230 Ga. 902 (3) (199 SE2d 779) (1973). We find no such abuse here.

4. We have reviewed the remaining enumerations of error, and find that they are without merit.

Judgment affirmed.

All the Justices concur, except Bowles, J., who concurs specially, and Jordan and Hill, JJ., who dissent.