Annunciatio v. State

Hill, J.

Fortunatio Annuneiatio was indicted for the offense of rape; for that, “on the 8th day of April, 1932, with force and arms,” he “did make an assault upon the person of Eosa Clower, and did strike, beat, and wound her, and did have carnal knowledge of and sexual intercourse with said Eosa Clower, a female, forcibly and against her will;” etc. He was tried and convicted, with a recommendation to mercy. His sentence was fixed at not less than ten years and not more than twenty years. Before arraignment or pleading, he filed two pleas in abatement, which pleas were overruled. He filed a demurrer to the indictment, which also was overruled. After verdict he filed a motion for new trial, which, as amended, was overruled. The defendant excepted to each of these three rulings.

The rulings on the pleas in abatement and on the demurrer to the indictment are not argued or mentioned in the brief filed by counsel for the defendant, and are to be treated as abandoned.

The prosecutrix testified: “During the month of April I was living on Elbridge Drive and going to school at Fulton High, over here at Washington and Fair Street. I met these two men here in Kress’s and McCrory’s on April 3d, I think. I never did really get acquainted with them there. I just watched them play the yo-yo, and heard their names mentioned by some of the girls. Neither one of them talked to me there. I never seen them at any place except there at the store, only the afternoon when I went to their apartment. I went to their apartment only once, that was with Frances Hutcheson. How come me to go there, I was with Frances on Tuesday afternoon, when Ambia Subia walked almost up town with Frances, and told Frances he wanted her to come to the apartment. Frances asked him, ‘You want us to come to the apartment?’ And he says, ‘No, you come to the reception hall.’ Following that invitation, we went up-there the next afternoon, which was Tuesday; and when we got there, the first one who come to the door was Ambia, and he had on an apron and said he was cooking something. And we went to the kitchen, and he says come in there, and Frances says, ‘In your room?’ and he says, ‘Yes,’ and so we went in, and stayed until he come back in there, and he took Frances’ books and laid them down on the dresser; that was Ambia. And Fortunatio was in the next room at that time, reading a paper. And then Fortunatio come to the door and spoke a few words in his own language to Ambia, which I didn’t understand. We were in Ambia’s room when Fortunatio was talking to him, and he asked me my name, and then he asked me did I want to see his wife’s picture, and I. told him yes, and he says, 'Come in the next room,’ and 1 went in the next room. No one went in there with me. I rvent in Fortunatio’s room, and Ambia stayed in his room with Frances, and Fortunatio’s door was left open for a few minutes, and after that few minutes Ambia came and said something in his own language I didn’t understand, and Fortunatio closed the door. Then he asked me to sit down and I told him there were no chairs in the room, and he says, ' Sit down on the bed,’ that was Fortunatio, and I sat down on the bed, and he got a pencil and scratch-pad and asked me what grade I was in in school, and I told him. He asked me was I taking Spanish. I told him no, and I asked him to write a few words in Spanish for me, and he did; and then he pulled me back on the bed and kissed me. He didn’t show me anything else, and nothing else happened; and after he threw me on the bed and kissed me, then he felt of my parts, and he put his hand up under my dress. 1 fought him. I saw I could not keep him off. Then he put one leg on me and took out his private parts and put them against my private parts. When he finished I got up; all the time I was fighting, and I started crying. Then I got up, and I discovered I was bleeding. I went home that night, but I didn’t tell my mother or my father anything about it; and my mother was milking ; and I washed out my bloomers so she would not know it, and still she didn’t know anything about it. . . This garment is the bloomers I refer to. When I took them home and washed them, T hung them on the back line. I didn’t tell my mother, because I was afraid she would tell my daddy, and my daddy would beat me. Me and Fortunatio didn’t have any conversation after he did this thing to me. He didn’t speak to me, only to say to come back, and told me not to tell Frances, but he did not give me any reason for not telling her. Q. 'Tell the jury whether you ever consented for him to do this thing to you. A. No sir, I didn’t.’ He never asked me to let him do these things. What I did to try to prevent it, well, I fought, I slapped him once or twice — more than that, I think;” etc.

Dr. W. A. Arnold testified that he examined the girl about a week after the alleged rape, and found her hymen ruptured. He could not state how long it had been so. The mother of the prosecutrix testified that she found the bloomers referred to in the girl’s testimony; and that she knew the stains left on them were bloodstains, and were not caused by the girl’s “periods.” Paul Seymour and Harry Ingram testified that they saw Eosa Mae Clower and Frances Hutcheson go into the apartment-house on Washington Street; that they saw Eosa Mae Clower and the defendant in a room before the window, struggling; that they reported the matter to a policeman in the neighborhood, and the next day they reported the matter to the office of the solicitor-general, and a raid was made on the rooms of the defendant, and some girls were found there. Paul Seymour testified: “When this girl and boy was tussling by the window, they were both standing by the window. I don’t know how far they were from the window. I know I seen them in the window. I guess they come right close up to the window when I seen them. I know I seen them. And I swear that was Miss Clower who wrestled by the window, when I was that distance from them across the street, looking up, and saw them at the window. I guess that tussling went on in the room for fifteen minutes.”

The defendant introduced no witness. He made a statement in which he denied the charge against him.

The evidence was sufficient to authorize the verdict.

The motion for new trial assigns error because the court failed anywhere to instruct the jury that they were to disregard any testimony or evidence ruled out by the court. This ground states the rulings by the court on testimony of Frances Hutcheson, as follows: Q. (by the solicitor-general) : “Following the reception of this note here I first exhibited to you, state whether or not you got any invitation from either of these men.” This was objected to as leading, suggesting, and calling for a conclusion of the witness, and the court overruled the objection by permitting her “to state whether she received an invitation.” “ Q. Frances, did you get an invitation to go any place from either of these men; and if so, state who was there ? A. I got an invitation, and Eosa Mae Clower was present, but nobody else. The invitation was given to me. Ambia asked, me to come to his room. There was nobody there at the time but Ambia and Eosa and me.” On objection the court ruled out what happened when this defendant was not there, but failed to instruct the jury what was being ruled out, and that they should eliminate such testimony from their consideration. The same witness testified: “I didn’t go anywhere on that invitation, but following that I went to where those two boys were. I went to their room located at 255 Washington Street, Tallulah Apartment-house. Eosa Mae Clower went there with me one time. I went one time with her. That was on the 13th, to that house on Washington Street. No one met us at the door and told us what apartment to go to. He told us where to go.” On objection to the statement, “He told us where to go,” the court made the following ruling: “If she got an invitation from somebody else, I rule that out; but she can state she went.” This ruling was sufficiently clear to indicate to the jury what testimony was ruled out. If a more explicit ruling was desired, counsel should have the point raised at the time. This ground is without merit. Wheeler v. State, 23 Ga. 292.

The court permitted the witness Frances Hutcheson to testify, over objection that it was irrelevant, what transpired on the day following that on which Eosa Mae Clower was alleged to have been raped by the defendant, as follows: “The day I heard the noise was the second time I was there, and Evelyn Barnett was there with me that day. Ambia and Barnard met us in the hall, and after we went to Ambia’s room, Evelyn Barnett went to Barnard’s [defendant’s] room.” On previous cross-examination this witness had testified, in response to a question by the counsel for defendant: “I went there afterwards, after April 13, I went on the 14th, the next day, and Evelyn Barnett was with me that time; and me and Miss Barnett were in the apartment when the officers came and arrested these boys.” The testimony of which complaint is made was brought out on redirect examination by the State, and was in substance the same as that elicited from the witness by the defendant’s counsel. Its admission was not cause for reversal.

Frances Hutcheson testified, on cross-examination : “In this indictment the 23rd of April, 1932, when the grand jury says I was assaulted, struck, and beaten in that apartment, they are mistaken about that.” The court ruled out this testimony, on objection by the State’s counsel, on the ground that the indictment referred to by the witness, was a different transaction from the one on trial. The ruling was not erroneous.

Ground 5, complaining of the admission of certain testimony “over the timely objection of this defendant,” is .an insufficient assignment of error, and raises no question for determination by the Supreme Court. Sikes v. Edwards, 149 Ga. 168 (2) (99 S. E. 621).

It is complained that the name of Paul Seymour, a witness for the State, was not furnished to the defendant as one upon whose testimony the charge was founded, and who did not appear before the grand jury. It is alleged that if the defendant had known that this witness was to testify against him, he could have procured impeaching evidence that the witness had entered in the superior court a plea of guilty to the charge of unlawfully entering a house with intent to steal; and that the witness was under charge of larceny after trust, in the criminal court of Atlanta. This witness testified that “those girls would come there at 2:30 and stay there until 5 :30, and I watched them, and any white American would do the same thing.” The court of its own volition directed the witness to “leave that out.” “It is respectfully submitted that the harm such a remark would work had been done; and this, taken in connection with the highly prejudicial and inflammable argument of the assistant solicitor-general, made it almost an impossibility for the court to have cured the harm and injury wrought this defendant by said alleged prejudicial remark on the part of said witness; and had this defendant known the intention of the State to use said witness against him, he would have been prepared to show this witness’s true character to the jury, and it would have affected his credit with the jury.” There is nothing to show that any demand was made for the list of witnesses to be used against this defendant. In Fears v. State, 125 Ga. 739 (3) (54 S. E. 661), this court held: “The failure to furnish the accused or his counsel with a copy of the indictment and list of witnesses, in the absence of a demand therefor, does not constitute a valid ground for setting aside the verdict of guilty.” And see Inman v. State, 72 Ga. 269.

It is complained that the court erred in not declaring a mistrial, because of language used by the solicitor-general in his argument to the jury, as follows: “The United States took over the Phillipine Islands; and why, God only knows. We got a burden when we took over those islands. We have .the Phillipino with us, and can’t get rid of him. There sfiould be some way to get the Phillipinos back, but there is no way to do so.” The court refused to grant a mistrial, but warned the solicitor-general to confine his argument to the evidence and issues in the case, and the court instructed the jury to disregard the argument of the solicitor-general as to the race of the defendant, and to try said case as they would any other case, irrespective of where defendant came from, or his race; that he was entitled to a fair and impartial trial, as any other defendant would be. "Under the facts the judge did not err in refusing to declare a mistrial.

Ground 8 is as follows: “Because the court erred in giving the following in charge to the jury: ‘Bape, as defined in our law, is the carnal knowledge of a female forcibly and against her will, and is punishable with death, unless recommended to mercy by the jury, in which event the defendant is to receive the same punishment as for assault with intent to rape, which is not less than one year, nor more than 20 years, at hard labor in the penitentiary. In order to constitute the crime of rape, there must be a penetratipn of the female organ of generation by the male organ of generation. That penetration may be slight or great, but there must be some penetration of the female organ by the male organ in order to constitute the crime of rape. Force is a necessary element to constitute the crime of rape. Such force may be exercised either by physical violence, or by threats of serious bodily injury which overpowers the female and causes her to yield against her will. Whether there was force in either or neither of these waj^s is for determination by the jury from the evidence upon this trial, considering the defendant’s statement and giving it such force and effect as you see fit to place upon it. If you find beyond a reasonable doubt that there was force in either or both of these ways, you would'be authorized to convict, provided you also find the other necessary ingredient exists. If you find there was no force in either of these ways, you could not convict of rape.’ Said charge was not adjusted to the evidence in this case, and was prejudicial to this defendant in that the court told the jury, in substance, that they must find that there was no force in either of these ways before they would be authorized to acquit this defendant, the language of the court being that, ‘If you find there was no force in either of these waj^s, you could not convict of rape.’ And this defendant says that there was no testimony or evidence offered by the State to show that any threats had been made by this defendant or any one else to do ‘serious bodily injury’ in order to overpower the will and obtain the consent of the alleged victim, Rosa Mae Clower, she having sworn herself as follows: ‘I told Mr. Stephens here a few minutes ago about everything that happened to me up there in that apartment. I told him everything that was said, everything Fortunatio said and done. And I told everything Ambia said in my presence. Neither of these boys threatened me with any violence; they said not to tell, if I did I would get into trouble. . . They didn’t threaten to harm me if I told, in any way. . . Then he asked me to sit down, and I told him there were no chairs in the room. And he says, “ Sit down on the bed.” That was Fortunatio. And I sat down on the bed, and he got a pencil and scratch-pad and asked me what grade I was in in school, and I told him. He asked me was I taking Spanish. I told him no, and I asked him to write a few words in Spanish for me, and he did, and then he pulled me back on the bed and kissed me. He didn’t show me anything else, and nothing else happened ; and after he threw me on the bed and kissed me; then he felt of my parts, and he put his hand up under my dress. I fought him. I saw I could not keep him off. Then he put one leg on me and took out his private parts and put them against my private parts. When he finished I got up. All the time I was fighting, and I started crying. Then I got up and discovered I was bleeding.’ Besides not being adjusted to the evidence in the case, the court in express words and language told the jury that if they believed the alleged rape was accomplishd by means of ‘threats of serious bodily injury which overpowered the alleged victim’s will and caused her to yield,’ they would be authorized to find this defendant guilty, the exact language of the court being as follows: ‘Force is a necessary element to constitute the crime of rape. Such force may be exercised either by physical violence, or by threats of serious bodily injury which overpower the female and cause her to yield against her will.’ ‘Whether there was force in either or neither of these ways is for determination by the jury from the evidence upon this trial, considering the defendant’s statement and giving it such force and effect as you see fit to place upon it.’ ‘If you find beyond a reasonable doubt that there was force in either or both of these ways, you would be authorized to convict, provided you also find the other necessary ingredient exists.’ ‘If you find there was no force in either of these ways you could not convict.’ And this defendant says that said charge was prejudicial to him in that the jury was misled into believing that the court probably suspected that he had made threats of serious bodily injury to overpower the will of the alleged victim, and said charge authorized the jury to convict this defendant contrary to the evidence adduced by the State before them; and it is doubtful, therefore, whether it was the intention of the jury, under said charge, to find this defendant ‘guilty of rape by physical force and violence,’ or whether they intended, as authorized by said charge, to find this defendant ‘guilty of rape by intimidation;’ and this defendant says that for all of the reasons herein set out he should be granted a new trial.” If this charge was unauthorized by the evidence, as is contended, it was not harmful to the accused.

t Ground 9 complains because the court charged the jury as follows: “Gentlemen, under our law, all women are presumed to be virtuous until the contrary shall appear. So gentlemen, you are to consider this case on all the facts which have been introduced in the trial of this case, talcing in connection therewith the defendant’s statement; and if you believe this defendant did have carnal knowledge of Eosa Mae Clower at any time in the County of Fulton and State of Georgia, within four years from the time this indictment was found and returned into this court by the grand jury, and that the defendant did make the assault upon the person of Eosa Mae Clower, and did have carnal knowledge of and sexual intercourse with her, a female, forcibly and against her will, as alleged in the indictment, and you believe that beyond a reasonable doubt, you would be authorized to find the defendant guilty of the crime of rape, as charged in the indictment.” This charge is not subject to the criticism urged in this ground, to wit, that the court by said words and language expressed the opinion to the jury as to what had or had not been proved.

The court did not err in overruling the motion for new trial.

Judgment affirmed.

All the Justices concur, excepl