Coleman v. State, 20836

• Decision Date: 12 April 1960
• Docket Number: No. 20836,20836
• Parties: Pete COLEMAN v. STATE.
• Court: Georgia Supreme Court

Page 2

114 S.E.2d 2

215 Ga. 865

Pete COLEMAN v. STATE.

No. 20836.

Supreme Court of Georgia.

April 12, 1960.

Irwin L. Evans, N. J. Smith, Sandersville, Emory L. Rowland, Wrightsville, Larsen & Larsen, Dublin, for plaintiff in error.

W. H. Lanier, Sol. Gen., Metter, Casey Thigpen, Sandersville, Eugene Cook, Atty. Gen., Rubye G. Jackson, Deputy Asst. Atty. Gen., for defendant in error.

Syllabus Opinion by the Court

MOBLEY, Justice.

Pete Coleman was jointly indicted with Marion Buford Hooks in Washington Superior Court for rape, alleged to have been committed upon Mildred Dawson on August 4, 1959. To the indictment, the defendant Coleman filed general and special demurrers, which were overruled. He excepts to the overruling of his demurrers. The defendant Coleman was tried and convicted of rape, the jury fixing his punishment, minimum and maximum, at twenty years in the penitentiary. To a judgment overruling his motion for new trial on the general and eight special grounds, the defendant excepts. The defendant has abandoned the general grounds and special grounds 3, 5, and 6. Held:

1. Paragraphs 1, 2, 3, and 4 of the demurrers are to the following portion of the indictment: 'The grand jurors selected * * * in the name and behalf of the citizens of Georgia charge and accuse Pete Coleman and Marion Buford Hooks of the county and State aforesaid with the offense of rape for that the said Pete Coleman and Marion Buford Hooks on the 4th day of August in the [year] of our Lord Nineteen Hundred and Fifty-nine in the county aforesaid did then and there, unlawfully and with force and arms, make an assault upon the person of one Mildred Dawson, and did strike, beat, and hole her, and did have carnal knowledge of and sexual intercourse with said Mildred Dawson, a female, forcibly and against her will, contrary to the laws of said State, the good order, peace, and dignity thereof.' These four paragraphs of the demurrer allege that the indictment does not charge any offense against the defendant under the law, and that the indictment illegally joins the offenses of rape and assault and battery in a single count without alleging that the offenses are parts of the same transaction. The allegation that the defendants 'did have carnal knowledge of and sexual intercourse with said Mildred Dawson, a female, forcibly and against her will, contrary to the laws of said State * * *' charges rape in the terms and language of the Code section defining rape (Code § 26-1301), and is sufficiently technical and correct. Pippin v. State, 205 Ga. 316(4), 53 S.E.2d 482. While not necessary to properly charge the defendant with rape, it was not error to include in the indictment the words 'did * * * make an assault upon the person of one Mildred Dawson, and did strike, beat, and hold her.' 'An assault, or assault and battery, is necessarily involved in every case of rape.' Sims v. State, 203 Ga. 668, 670, 47 S.E.2d 862, 864, and cases cited. The indictment did not, as contended by the defendant charge two or more separate offenses, but clearly charged as an element of the offense of rape and as tending to show that the defendant did have carnal knowledge of Mildred Dawson, forcibly and against her will, the commission of an assault and battery upon her.

2. Paragraphs 5-10 of the demurrer are to the two paragraphs of the indictment charging that Pete Coleman had been previously convicted of murder and sentenced to life imprisonment in the penitentiary of this State, and of assault with intent to rape and sentenced to not less than five and not more than ten years in the penitentiary. The demurrers contending that Code (Ann.) § 27-2511, which provides that, if a person who has been previously convicted of an offense and sentenced to confinement and labor in the penitentiary shall afterwards commit a crime punishable by confinement and labor in the penitentiary, he shall be sentenced to undergo the longest period of confinement and labor for punishment of the offense for which he stands convicted, (1) is prejudicial as tending to place the defendant's character in issue, (2) deprives him under the State and federal constitutions, Const. art. 1, § 1, par. 5; U.S.Const. Amend. 14, of a fair and impartial trial by jury, and (3) provides that he will twice be placed in jeopardy for the same offense, are all without merit. Tribble v. State, 168 Ga. 699(1), 148 S.E. 593; Kryder v. State, 212 Ga. 272, 91 S.E.2d 612; Reid v. State, 49 Ga.App. 429, 176 S.E. 100; McDonald v. Commonwealth of Mass., 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542; Graham v. State of W. Va., 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917.

3. This court in Tribble v. State, 168 Ga. 699, 701(4), 148 S.E. 593, supra, held that Code (Ann.) § 27-2511 was not repealed by the enactment of Code (Ann.) § 27-2501, nor by the passage of the indeterminatesentence law. Code (Ann.) § 27-2501. Accordingly, the court properly overruled the demurrers attacking the indictment on these grounds.

4. There is no merit in the contention raised by demurrer that the second-offender statute (Code, Ann., § 27-2511) is not applicable in rape cases or other capital felony cases. This court in a well-reasoned opinion prepared by Justice Jenkins in Winston v. State, 186 Ga. 573, 198 S.E. 667, 670, 118 A.L.R. 719, a capital-felony case, after a full discussion of the issues raised and citation of authority, held that Code (Ann.) § 27-2511 was applicable in capital-felony cases. He concluded as follows: '* * * if the jury in this case, under the law as it previously existed, should find a verdict of guilty without a recommendation to mercy, the death sentence would have to be imposed; if they should find a verdict of guilty with a recommendation to mercy, the punishment would be life imprisonment; and if they should find a verdict of guilty with a recommendation that the defendant be punished within the term of years prescribed by the robbery statute, and should...