Glisson v. State

Sognier, Judge.

Appellant was convicted of incest and cruelty to a child, and he appeals.

1. Appellant contends that the offense of incest cannot be committed between a “stepgrandfather” and his “stepgranddaughter,” and therefore it was error to deny his motion for a directed verdict of acquittal as to that offense. We agree.

“The prohibition against intermarriage or carnal knowledge between persons related by consanguinity, unless expressly extended by statute, applies only to those related within the Levitical degrees [Cook v. State, 11 Ga. 53], or if certain relations are specified by the statute, only to such relations. The question, however, is generally regulated by statute, a common provision being that in order to constitute the crime the parties must be related to each other in some degree within which marriage is prohibited.” 42 CJS, Incest, § 3a.

Consanguinity is defined as: “Kinship; blood relationship; the connection or relation of persons descended from the same stock or common ancestor. Consanguinity is distinguished from ‘affinity,’ which is the connection existing in consequence of a marriage, between each of the married persons and the kindred of the other.” Black’s Law Dictionary, Special Deluxe Fifth Edition, p. 275. “There is a clear and just moral difference between the marriage or sexual intercourse of persons related by consanguinity [blood] and that of persons related only by affinity, and hence a statutory prohibition expressly relating to degrees of consanguinity will not by implication extend to degrees of affinity, . . . Affinity within the meaning of statutes against incest does not arise between one of the parties to a marriage and a person related only by affinity to the other party.” CJS, supra, § 3b.

OCGA § 16-6-22 (a) provides: “A person commits the offense of incest when he engages in sexual intercourse with a person to whom he knows he is related either by blood or by marriage as follows: (1) Father and daughter or stepdaughter; (2) Mother and son or stepson; (3) Brother and sister of the whole blood or of the half blood; (4) Grandparent and grandchild; (5) Aunt and nephew; or (6) Uncle and niece.” (Emphasis supplied.) Thus, the Georgia statute, while prohibiting sexual relations between certain persons related only by affinity, does not include the stepgrandfather-stepgranddaughter relationship in its definition of incest. It has always been the law that criminal statutes must be strictly construed against the State, Mitchell v. State, 239 Ga. 3 (1) (235 SE2d 509) (1977), and since the statute does not include a prohibition against sexual intercourse between a “step-grandfather” and “stepgranddaughter,” it is excluded under the maxim expressio unius est exclusio alterius.

“The fact that the . . . sexual act[s] here involved [are] fully as loathsome and disgusting as the acts proscribed by the Code does not justify us in reading into the statutory prohibition something which the General Assembly either intentionally or inadvertently omitted.” Riley v. Garrett, 219 Ga. 345, 347-348 (1) (133 SE2d 367) (1963). Since the relationship between appellant and the alleged victim is not one which is expressly enumerated in the statute, any sexual relationship between them would not be incestuous. Accordingly, appellant’s conviction of incest must be reversed.

2. Appellant alleges it was error to allow witnesses to testify as to what the alleged victim told them. In this regard the alleged victim, who was sixteen at the time of trial, invoked her privilege not to testify under the provisions of OCGA § 24-9-27 (a), on the ground that her testimony would tend to bring disgrace or public contempt upon her family. She invoked this privilege three times, and refused to testify despite the court’s ruling that she must testify. The trial court then allowed a school counselor, a former GBI agent, and the victim’s mother and stepfather to testify, over a continuing objection, as to what the victim told them about the offenses charged. The State offered such testimony on the ground that it was to explain conduct, and the court admitted it on that ground. Thus, appellant’s conviction is based entirely on hearsay testimony. OCGA § 24-3-16 is not applicable here, because the alleged victim was not under the age of fourteen at the time she made her statements.

In Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982), two detectives had been allowed to testify at trial, on the ground that it was to explain conduct and motive, that a woman, since deceased, had told them she had been abducted and raped repeatedly by two men, one of whom was the defendant. The Supreme Court held, however, that such testimony was offered to prove that the victim had been raped and that the defendant had committed the rape. The court also held that such testimony was hearsay and inadmissible under Code Ann. § 38-302 (now OCGA § 24-3-2) to explain the detectives’ conduct or motives, since their conduct and motives were not matters concerning which the truth must be found. Here, as in Momon, it is clear that the purpose of the admitted testimony was not to explain the witnesses’ conduct, but to prove the truth of what the victim had told them, i.e., that appellant had committed the offenses charged. Thus, such testimony was inadmissible hearsay, and it was error to allow such testimony. Id. at 867. See also Parker v. State, 162 Ga. App. 271, 274-275 (290 SE2d 518) (1982). “If the hearsay rule is to remain a part of our law, then OCGA § 24-3-2 . . . must be contained within its proper limit.” Teague v. State, 252 Ga. 534, 536 (1) (314 SE2d 910) (1984).

We do not find the “necessity” exception to the hearsay rule, set forth in OCGA § 24-3-1 (b), applicable under the facts of this case. That exception applies only when the witness is unavailable, usually because of death or in cases where the witness may not be compelled to testify, as in the case of a wife who cannot be compelled to testify against her husband. Our Supreme Court has established that “a witness cannot refuse to testify relative to material matters concerning a crime committed by a member of [her] family on the basis that [her] answer would bring disgrace, infamy or public contempt upon [her] or [her] family.” Thomas v. State, 245 Ga. 688, 691 (4) (266 SE2d 499) (1980). See also Brown v. State, 242 Ga. 536, 538 (3) (250 SE2d 438) (1978). /Thus, the alleged victim in this case could not invoke privilege on this ground and could have been compelled to testify. Since her testimony was compellable, appellant has been deprived of a trial in which the victim’s testimony would be immediately, rather than intermediately, before the jury for its evaluation, and she would be subject to cross-examination. The result of the court’s failure to compel the witness to testify was that it allowed inadmissible evidence to be presented to the jury, and admissible evidence was shielded from its consideration.

Two wrongs do not make a right, and the failure of the trial judge to compel the alleged victim’s testimony should not sanction the consequent admission of hearsay testimony. That is reversible error for two reasons. First, the victim’s testimony would be direct evidence that either the offenses charged occurred or they did not occur. Second, appellant’s accuser would face him and be subject to cross-examination, thereby giving appellant his constitutional right to confront the witness against him. Higgs v. State, 256 Ga. 606 (351 SE2d 448) (1987), is not applicable here, for in Higgs the failure of the wife of the defendant to testify was based on the exercise of her privilege not to testify against her husband, rather than on any privilege pursuant to OCGA § 24-9-27 (a) and thus, she could not be compelled to testify.

We are unaware of any other exception to the hearsay rule which would make the testimony of the witnesses admissible. The victim’s statements were not part of the res gestae, they did not constitute fresh complaint, nor were they spontaneous exclamations made shortly after the offenses charged were allegedly committed, since the acts of incest allegedly occurred over a period slightly in excess of one year. On the contrary, the initial statement to the school counselor was made after a student informed the counselor she should talk to the victim about her relationship with her grandfather. All statements by the victim were the result of questioning by the various witnesses, and were not made voluntarily by the alleged victim. Even assuming, for the sake of argument only, that the testimony of the witnesses was admissible, hearsay testimony ordinarily is wholly without probative value, and even when introduced without objection, such testimony alone cannot establish a fact in issue. Jones v. State, 50 Ga. App. 97 (1) (176 SE 896) (1934); Collins v. State, 146 Ga. App. 857, 860 (1) (247 SE2d 602) (1978). Hence, it was error to allow the hearsay testimony of the witnesses under the facts presented here, and the conviction is reversed.

3. In view of our decision in Divisions 1 and 2, it is unnecessary to address appellant’s remaining enumerations of error.

Judgment reversed.

Birdsong, C. J., Banke, P. J., Carley and Beasley, JJ., concur. Deen, P. J., McMurray, P. J., Pope and Ben-ham, JJ., dissent.