Allen v. State

• Decision Date: 13 March 1923
• Docket Number: (No. 3362.)
• Parties: ALLEN . v. STATE.
• Court: Georgia Supreme Court

155 Ga. 332

116 S.E. 534

ALLEN .

v.STATE.

(No. 3362.)

Supreme Court of Georgia.

March 13, 1923.

(Syllabus by the Court.)

Russell, C. J., dissenting.

Error from Superior Court, Haralson County; Moses Wright, Judge.

Eulice Allen was convicted of rape, and he brings error. Affirmed.

Willis Smith and Smith & Milllcan, all of Carrollton, and Taylor Smith, of Bremen, for plaintiff in error.

J. R. Hutcheson, Sol. Gen., of Douglasville, Geo. M. Napier, Atty. Gen., Seward M. Smith, Asst. Atty. Gen., and Griffith & Matthews, of Buchanan, for the State.

HILL, J. Eulice Allen was indicted for the offense of rape upon Belle Gray, and the jury trying him returned a verdict of guilty, with a recommendation to the mercy of the court, and with a minimum sentence of one year and a maximum sentence of three years in the penitentiary, and the defendant was sentenced accordingly. He made a motion for new trial, on various grounds, which was overruled, and he excepted.

Exception is taken to the following charge of the court:

"I charge you further, gentlemen, in this case you could not convict upon the uncorroborated testimony of the young lady alleged to have been ravished. There must be some circumstances or evidence in the case to corroborate her testimony, but what amount of corroboration is necessary in order for the jury to convict is a matter entirely in your care, and you will look and see whether there are any circumstances in this case which corroborate her, and whether this corroboration is sufficient to authorize you to convict of the offense as charged. You may see whether there wasan outcry upon her part at the time of the alleged crime, if there was any crime; see whether she made a report of the crime, made an outcry, or told it shortly thereafter; and see whether or not she is corroborated by the fact that her private parts were torn and lacerated, and whether she was or was not bleeding. Any evidence of such things the court has permitted to come before you to aid you, if it does aid you, in determining whether or not the testimony of this young lady is corroborated by any facts or circumstances in the case. If you find that it has, and sufficiently; and you are convinced beyond the doubt that I have explained to you of the defendant's guilt, you should convict him; otherwise you ought to acquit."

Movant insists that the foregoing charge amounted to an expression or intimation of an opinion by the court of what had been proved, in that the prosecutrix had made an outcry and that her private parts were torn and lacerated, and cites the case of Jeffers v. State, 143 Ga. 849, 85 S. E. 1005, where it was stated and held by this court as follows:

"On the trial of one charged with rape the court instructed the jury: 'In determining the issues of this case you will consider all the facts and circumstances of the case; the time and place where the offense is charged to have been perpetrated; the time that the complaint was made and the manner in which it was made; * * * also the failure of the party claiming to have been injured to make complaint; the reason for not complaining or the reason for making complaint; the circumstances under which the complaint was made. Weigh and consider all the circumstances in determining and reaching a finding in this case. If the injured party failed to make complaint at the first opportunity, you will consider whether there was or was not sufficient or reasonable cause or excuse for not complaining at...