Howell v. State , 1925 Ga. LEXIS 290 ( 1925 )

Gilbert, J.

Clarence Howell and Leo Hill were indicted for the offense of rape. The jury returned a verdict of guilty, with recommendation, fixing the maximum and minimum punishment at twenty years, and they were sentenced accordingly. They filed a motion for a new trial, which was overruled, and they excepted. The evidence introduced by the State tended to show, and authorized the jury to find, that on Sunday, January 4, 1925, three schoolgirls who were near neighbors residing in the country, and who had been visiting the homes of two of the number, were walking along the highway, when the defendants appeared in an automobile. The defendants insisted upon taking the young women into the car, offering to take them home. At first the women declined, saying they preferred to walk. After insistence upon the part of the defendants they entered the automobile, and one of the young women, after being carried beyond her home, was returned and permitted to leave the car, which was not stopped but merely slowed down. The defendants assured the other two young women that they would take them home, but did not at once do so. After running in a different direction they picked up two other young girls residing in the neighborhood, but soon thereafter these two girls were left at the home of one of them. Thereafter the two defendants traveled around in different directions until about 8:30 p. m., giving various excuses and explanations for their failure to carry the girls home. They were drinking and had a pistol or pistols on their persons, with ■which they at times threatened the girls, refusing to permit them to leave the automobile. On the pretext of seeking water at a spring near the roadside they first took one of the girls and then the other out of the car. The two girls, who attended the same school, were each sixteen years of age. One of them is a first cousin of Leo Hill and a second cousin of Clarence Howell. Howell is a married man. Howell forced one of the girls a short distance from the road, and by force and threats of violence had criminal intercourse with her. While this was going on, Leo Hill, by force and intimidation, had criminal intercourse with the other girl. The girls were then taken home, arriving shortly after nine o’clock at night, finding their respective families considerably excited, due to the lateness of the hour of their return. The defendants had instructed-, the girls to say that they had been taken into the car by the defendants for the purpose'of bringing them home but that they had had car trouble and that one of the defendants had to be taken to his home on account of drunkenness; and they were threatened with violence if they did not so report.

Due to the peculiar actions of the girls, their excited manner and their peculiar conduct, a physician was called for the purpose of ascertaining if they had been “doped.” On hearing the explanation of the girls, which was in accordance with instructions from the defendants, the physician did not then make any examination to see if they had been outraged. Nothing further was learned that night. Each of the girls slept at her respective residence, one of them temporarily residing, for the purpose of attending school, with her sister and brother-in-law. The next morning the latter girl was taken to her home, some ten miles distant, by her sister and brother-in-law. On the way to the home of her parents the latter girl divulged the facts above detailed, to the effect that she had been criminally assaulted by Clarence Howell, under, the circumstances above stated. At about the same hour the other girl, retracting the statement of the night before, divulged to her mother the facts and circumstances detailed above, and to the effect that she had been outraged by Leo Hill. Their clothing was examined and bore some evidences corroborating the statements of the females. The doctor was again called in' on Thursday, and on the trial testified that both of the females in their private parts showed evidences of having had sexual intercourse, that the parts were swollen, and that the examination was painful. The spot on the roadside where the crime was alleged to have been committed was examined by witnesses who on the trial testified as to imprints upon the ground, corroborative of the testimony of one of the girls to the extent that knee and toe prints and impressions of the body were found. The fact that the accused were drinking and had a pistol or pistols in the car was shown by witnesses other than the girls who were alleged to have been raped. The defendants made statements on the trial corroborating in detail substantially all of the facts above stated, with the material difference that Howell had intercourse with one of the girls by her free consent and permission, and that Hill did not have intercourse as claimed. The defendants, moreover, insisted that the meeting with the girls was by previous arrangement made on Saturday, the day before, between Hill and the young lady who is 'his first cousin, and that the girls entered the car of their own motion, and not by the invitation of the defendants.

One witness, Miller Sears, testified on the trial that the two defendants came to his house about nine o’clock on Sunday night, January 4; that he had gone to bed; that Howell was his brother-in-law and Hill was his third cousin'; that they drove to his gate and blew the car-horn; that witness got up, went out, and engaged in conversation with the two defendants; that defendants told him “they had been carousing around; . . they said they had been off with some women, that they had carried some women to no man’s land. Clarence Howell had some whisky there; he drank some of it in my presence. I asked them what kind of women it was, and Leo Hill said they were up at the top of the pot and peeping over. I said, ‘Well, boys, you didn’t have any trouble, did you?’ And Leo Hill said, ‘No, I didn’t have such bad time getting mine;’ and Clarence Howell said, ‘Believe me, I had a hell of a time, but I got it.’ Leo Hill took his pistol out on that occasion and handed it over to me, but I would not take it.” One ground of the motion for a new trial is based upon affidavits offered as newly discovered evidence attacking this testimony on the ground of contradictory statements. Another ground of the motion is based upon alleged newly discovered evidence contradicting some of the evidence of the two girls who testified that they had been assaulted, and imputing the use of profane language and improper conduct to one of them.

From the above statement it will appear that the verdict is - duly supported by 'evidence. The headnotes, except the fourteenth, do not require elaboration.

Judgment affirmed.

All the Justices concur.