Deen v. State, 21040

Decision Date11 October 1960
Docket NumberNo. 21040,21040
Citation116 S.E.2d 595,216 Ga. 387
PartiesWalter Ethridge (Buddy) DEEN v. STATE.
CourtGeorgia Supreme Court

J. Laddie Boatright, Douglas, for plaintiff in error.

Dowey Hayes, Solicitor-General, Douglas, Eugene Cook, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., for defendant in error.

Syllabus Opinion by the Court

DUCKWORTH, Chief Justice.

The defendant was indicted, tried and convicted of rape upon his daughter, age 12, and his demurrer to the indictment and motion for judgment notwithstanding the verdict or new trial, having been overruled, the exceptions are to these judgments. Held:

1. While the indictment which charges the defendant with rape upon his daughter, age 12, does set out allegations showing incest, the defendant is not charged with more than one felony by the indictment, and it is not subject to demurrer as having allegations that are duplicitous, multifarious, irrelevant, immaterial, and prejudicial, requiring the striking of the words 'his daughter, now 12 years old.' The court did not err in overruling the demurrer.

2. No matter by what name a pleading is called, the nature of the action is determined by the substance. Code § 81-101; McNabb v. Lockhart & Thomas, 18 Ga. 495(7); Malone v. Robinson, 77 Ga. 719(2-a). The motion of the defendant, while styled a motion for judgment notwithstanding the verdict (which is never available in a criminal case), or in the alternative a motion for new trial amounts to no more than a motion for new trial, and it will be considered only as such. See Code, § 110-113; Wilson v. State, 215 Ga. 775(1), 113 S.E.2d 607; Albert v. State, 215 Ga. 564(3), 111 S.E.2d 215; Hooks v. State, 215 Ga. 869, 114 S.E.2d 6. The evidence was ample to support the verdict and the general grounds of the motion for new trial are without merit. Shurley v. State, 210 Ga. 136(3), 78 S.E.2d 27; Jones v. State, 213 Ga. 814(1), 102 S.E.2d 21.

3. The substance of the special ground of the motion for new trial is the denial of the defendant's right to cross-examine the prosecutrix as to her activities with a certain boy at a party. Where the illegal sexual or carnal intercourse is with a female child under the age of 14 years, the questions of consent and chastity are not material, and it would serve no useful purpose to allow a thorough and sifting examination as to her credibility in regard to such questions. Latimer v. State, 188 Ga. 75(1), 4 S.E.2d 631; Code, §§ 26-1303, 26-1304; Pylant v. State, 191 Ga. 587(2), 13 S.E.2d 380. The rule is different, however, where...

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14 cases
  • Decker v. State
    • United States
    • Georgia Court of Appeals
    • September 29, 1976
    ...into the prosecutrix' past sexual experiences are irrelevant to whether or not she was molested by this defendant. See Deen v. State, 216 Ga. 387, 388(3), 116 S.E.2d 595. See also Price v. State, 233 Ga. 332(5), 211 S.E.2d 290; Lynn v. State, 231 Ga. 559(1), 203 S.E.2d 221. The court did no......
  • Birt v. State
    • United States
    • Georgia Supreme Court
    • November 25, 1986
    ...that substance, not mere nomenclature, controls. McDonald v. State, 222 Ga. 596, 597(1), 151 S.E.2d 121 (1966); Deen v. State, 216 Ga. 387(2), 116 S.E.2d 595 (1960). The rule in civil practice, that "[a]ll pleadings shall be so construed as to do substantial justice" (OCGA § 9-11-8(f)), sho......
  • Barnett v. State
    • United States
    • Georgia Court of Appeals
    • February 12, 1980
    ...of not guilty notwithstanding the verdict, as a motion for new trial merging into his separate motion for new trial. See Deen v. State, 216 Ga. 387(2), 116 S.E.2d 595. Judgment SMITH and BANKE, JJ., concur. ...
  • Krirat v. State
    • United States
    • Georgia Court of Appeals
    • July 6, 2007
    ...regard to the rape shield statute, that issues of consent and chastity are not material in cases of statutory rape. Deen v. State, 216 Ga. 387, 388(3), 116 S.E.2d 595 (1960). Accordingly, evidence of Kr.H.'s past sexual conduct would not have been admissible in connection with the statutory......
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