Clarke v. State

• Decision Date: 10 June 1930
• Docket Number: No. 20518.,20518.
• Citation: 153 S.E. 616,41 Ga.App. 556
• Parties: CLARKE. v. STATE.
• Court: Georgia Court of Appeals

41 Ga.App. 556

153 S.E. 616

CLARKE.

v.STATE.

No. 20518.

Court of Appeals of Georgia,

Division No. 1.

June 10, 1930.

Syllabus by the Court.

The court did not err in overruling the motion to continue the case.

Syllabus by the Court.

A woman sworn as a witness to prove an alleged assault with intent to commit rape upon her cannot be impeached by evidence of specific acts of unchastity.

(a) A witness cannot be impeached by proof of inadmissible matters simply because the witness has denied these matters.

Syllabus by the Court.

The court did not err in the failure to charge as complained of in special ground 3 of the motion for a new trial.

Syllabus by the Court.

Objection to testimony as being "immaterial and irrelevant, and as throwing no light on the issue in this case, " is too general for consideration by this court.

Error from Superior Court, Bartow County; C. C. Pittman, Judge.

Gus Clarke was convicted of an offense, and he brings error.

Affirmed.

Whitaker & Whitaker, of Cartersville, for plaintiff in error.

J. C. Mitchell, Sol. Gen., of Dalton, for the State.

BLOODWORTH, J.

1. A motion to continue the case was made on the ground of the absence of two witnesses. When counsel were asked if they had any other witnesses who would swear the same as the absent witnesses, they replied: "We have other witnesses by whom we can prove the same thing, but they live in other directions from the girl's home." In addition, the motion to continue does not show that the movant expected to have the absent witnesses present at the next term of court, or that the motion was not made for the purpose of delay only. Civil Code 1910, § 5715; Simons v. Mathis, 17 Ga. App. 588 (1), 87 S. E. 845; Louisville & N. Railroad Co. v. Ernest, 31 Ga. App. 810 (3), 122 S. E. 260. The continuance was properly refused.

2. The motion for a new trial complains that the court erred in excluding the evidence of several witnesses offered by the defendant to show specific acts of lewdness on the part of Miss Prances Jenkins, the woman alleged to have been assaulted. A portion of this evidence tended only circumstantially to show her lewd conduct; but in this ground it is alleged that two other witnesses, East and Croy, would have sworn that "some time last summer" (the crime was alleged to have been committed on the 15th day of August) they saw Miss Jenkins and a young man in "the act of sexual intercourse." The court excluded this evidence.

In Black v. State, 119 Ga. 747 (1), 47 S. E. 370, 371, Mr. Justice Turner said: "On the trial the defendant offered J. T. Amerson as a witness to prove that he had had connection with this young woman on a certain occasion. The court excluded this evidence, holding that her lewdness could be shown only by proof of general bad character, and not by specific acts. The court did not err in this ruling. In the case of Camp v. State, 3 Ga. 417, which was a case of assault with intent to rape, this court held that 'evidence that the person charged to have been injured is in fact a common prostitute, or evidence of reputation that she is a woman of ill fame, may be submitted to the jury to impeach her credibility and disprove her statement that the attempt was forcible and against her consent.' But the court added (page 422): 'It seems that testimony of specific acts of lewdness is not admissible'—citing Rex v. Clarke, 2 Starkie N. P. 334; Rex v. Barker, 3 Oar. & P. 467; Rex v. Hodgson, Russ. & R. C. C. 211; People v. Abbot, 19 Wend. [N. Y.] 192; 6 Car. & P. 562; Com. v. Murphy, 14 Mass. 387; contra, Com. v. Moore, 3 Pick. 194. There are many other American and English cases which seem to hold the same view, though there are some very respectable courts which have held the other way. See 23 Am. & Eng. Enc. L. (2d Ed.) 871, and authorities cited in notes 3 and 4; also Hughes, Cr. L. & Proced. § 337, and cases cited. We adopt the view indicated in the Georgia case above referred to, because it seems to be supported by the great weight of authority, and appears to be founded on good reason."

And in the same decision (p. 748 (2) of 119 Ga., 47 S. E. 370, 371) it was said: "When, in the present case, the woman alleged to have been wronged was upon the stand, she was interrogated as to specific acts of lewdness committed with Amerson and other men, but denied that she had ever had criminal intercourse with any of them. Counsel for the defendant insisted that the proffered testimony of Amerson was admissible for the purpose of discrediting or impeaching her as a witness, if not admissible for any other purpose. Thereupon the court withdrew from the jury her testimony as to this matter, stating that he would exclude from the consideration of the jury all testimony relative to specific acts of lewdness. This action on the part of the court is assigned as error in one of the grounds of the motion for a new trial. We do not think a witness can be impeached by proof of inadmissible matters, merely because the witness has denied these matters; and we accordingly hold that the withdrawal of the testimony of Lucy Wood, in which she denied having had improper relations with other men than the prisoner, was not error as to the prisoner, and that...