Byrd v. State

• Decision Date: 22 November 1938
• Docket Number: 12512.
• Citation: 200 S.E. 671,187 Ga. 328
• Parties: BYRD v. STATE.
• Court: Georgia Supreme Court

200 S.E. 671

187 Ga. 328

BYRD v. STATE.

No. 12512.

Supreme Court of Georgia

November 22, 1938

Rehearing Denied Dec. 3, 1938.

Error from Superior Court, Henry County; G. Ogden Persons, Judge.

Ralph Byrd was convicted of rape, and he brings error.

In rape prosecution, evidence that defendant induced victim to consent by threats to tape her mouth and leave her on road to die of suffocation held to authorize conviction. Code 1933 §§ 26-1301 to 26-1303.

Syllabus by the Court.

1. The defendant was convicted of the offense of rape. His motion for a new trial was overruled and he excepted. Held that the portions of the general charge to the jury of which he complained were not subject to the exceptions taken thereto.

2. There was no merit in the assignments of error on omissions to charge.

3. None of the assignments of error on the admission of testimony showed cause for a new trial.

4. The court did not err in excluding testimony offered by the defendant as to reputation for lewdness of the house in which the prosecutrix resided.

5. The two instructions given by the judge to the jury at the time of admitting evidence as to reputation of the prosecutrix for unchastity were not subject to the criticisms urged against them, namely, that one of such instructions intimated an OPINION that force had been used by the defendant upon the prosecutrix, and that each of them prevented the jury from considering such character evidence on the question of consent.

6. The evidence authorized the verdict. The court did not err in refusing a new trial.

Reuben A. Garland, of Atlanta, E. M. Smith and E. L. Reagan, both of McDonough, and Geo. Manley, of Decatur, for plaintiff in error.

Frank B. Willingham, Sol. Gen., of Forsyth, M. J. Yeomans, Atty. Gen., Ellis G. Arnall, Asst. Atty. Gen., and E. J. Clower, of Atlanta, for the State.

BELL Justice.

Ralph Byrd was convicted of the offense of rape, and recommended to the mercy of the court. His motion for new trial was overruled, and he excepted. It appearing that the female had attained the age of eighteen years, the prosecution was based upon the theory of actual want of consent, and did not involve the act of July 31, 1918, fixing the age of consent at fourteen years. Code, §§ 26-1301, 26-1302, 26-1303, Ga.L.1918, p. 259.

The testimony of the female, who may hereafter be referred to as the prosecutrix, was substantially as follows: She was 18 years of age and resided with her parents in Atlanta. On March 23, 1938, she was employed by a baking company, and was working on a night shift, the hours of which were from eleven at night until seven in the morning. She had been so employed for about four months. On the night in question she went to her work as usual, but on arrival was told by the superintendent that she would not have to work that night, but would come back the next night. It seems that some machinery was out of order. She left the place for the purpose of returning home by street car. On her way to catch the street car, she stopped at a lunch-stand where a young man whom she had known for about three months was employed. This young man had been 'very friendly and very nice' to her. On this occasion he introduced to her the defendant, Ralph Byrd, saying: 'This boy here will take you home. You will be all right; he is a friend of mine. I know him.' Ralph stated that he would 'be glad to,' and he and the prosecutrix then entered an automobile which was standing nearby. After traveling for some distance in the direction of the home of the prosecutrix, which was about four miles away, he turned in another direction and 'kept on driving,' although she asked him many times to carry her home. On the Jonesboro road, he stopped at a filling station operated by a man that he said was, and who proved to be, a deputy sheriff. 'He asked the sheriff what kind of boy he was and the sheriff said he had been knowing him a long time and he would treat me all right. Ralph got out of the car and started inside and the sheriff started in, too, and I called the sheriff back and told him I was worried and that I had asked Ralph to take me home and asked him what did he think about it and he told me he had been knowing him for a long time and not to be worried. I told him I was worried because I got in the car with him and a very dear friend of mine told me it would be all right, and the sheriff said, 'Well, I will tell you what I will do. I will go in and talk to Ralph, myself,' and he went inside and came back. While this sheriff went inside I asked this colored boy where the ladies rest room was--I will tell you that in case they bring it up--and he told me it was away up on the hill, so I went way up there in the dark and came back before this sheriff got back, and then the sheriff came and told me everything was going to be all right. He said, 'I have talked to Ralph and he is going to take you home,' and when Ralph came out I thought everything was going to be all right, depending on the sheriff. That is the only time I could have gotten away from him. * * * When we started away from the filling station I said, 'Aren't you going to take me home?' and he said, 'I do my business at night,' and I said, 'What kind of business do you do?' and he just laughed. He said, 'I have got to go to see my mother,' and I said, 'Where in the world does she live?' and he said, 'Down the road a bit,' and I pleaded and begged and cried to get him to take me home and he would not listen. He said, 'I am going to see my mother and I will take you home then.' He then headed toward Jonesboro and went on through Jonesboro and we would keep on riding and I asked him how much further he had to go and he said it was just a little further and I was worried to death and he absolutely refused to take me home.'

The witness further testified that the defendant turned to the left at Hampton, and after traveling several miles stopped in what appeared to be a lonely section, otherwise shown to be in Henry County, and accomplished the act of sexual intercourse with her under the following circumstances: 'He stopped the car and I didn't understand what was going to happen and he put his head on the steering-wheel and began to look at me, and he said, 'You just as well make up your mind,' and I said, 'What do you mean?' and then he began to talk and tell me that a girl like me had been out before, that I couldn't kid him, that he was nobody's fool, a girl that was built up and as pretty as I was had been around and I wasn't going to get away with it, and I began to plead and beg and try to tell him I had never been out with anybody before and he would not listen to me. Then he began to talk dirty, the language he used was terrible. Then he surprised me and turned on me all of a sudden and he still had me believing he was going to see his mother and then take me home. I didn't have any idea he was going to turn on me suddenly. He said, 'There is no need for you to try to run because there is a house about a mile up that way and one about two miles back that way and if you get out and start running I will catch you and there is no need for you to scream because no one can hear you.' He said, 'I have something in this car that can fix you right up,' and I asked him what he meant and he said he had some tape and he would gag my mouth if I didn't do what he said do and then leave me on the road to die and told me I would die because I couldn't breathe. He said, 'Which had you rather do, just give up or for me to tape your mouth and leave you on the road?' I said 'I would rather do that,' and he said, 'okeh,' and then I got to thinking that my mother had warned me two or three days before. * * * Well, he grabbed my wrist and I managed to open the door and get out and he drug me up against the fender an I fell down the bank and he grabbed my wrist and twisted it terribly. I got down on my knees and everything else and he would not listen to me. I had my bag in my hand and dropped it and felt like if I could pick up my pocketbook that he would turn me loose, but he didn't, he stooped down with me--he would not turn me loose. I struck at him two or three times and I screamed all the time and he just kept laughing and then he dragged me to the car and opened both doors and made me get on the inside. He was holding me all that time; he wouldn't turn my wrists aloose at all, and then he had intercourse with me. He just had intercourse once. Then he was mad. He said he was not satisfied. Said that I was terrible and all during that time I screamed and screamed and he said I wouldn't keep my mouth shut and he even put his hand over my mouth once. After he got up and on the way back he threatened two or three time to rape me again.' The witness further testified that the defendant hesitated about taking her back home until she assured him that she was 'not going to do anything about it,' but that she 'was afraid then that he would think he was going to be arrested and he was liable to have done anything.' She arrived at home about a quarter of six in the morning and made a report to her mother, as a result of which 'the police were notified right away and it did not take them but about seven minutes to get there.' The foregoing narrative is based upon the testimony given by the prosecutrix on direct examination. The evidence given by her on cross-examination was not such as to require a finding that it destroyed the effect of her direct testimony; and it need not be stated.

The defendant was arrested during the same morning. According to the arresting officer. 'He first said he was not out with a girl the previous night, but he later changed that when he was down at the police station. * * * He denied that he was guilty of...