Dorsey v. State
| Decision Date | 07 September 1948 |
| Docket Number | 16304. |
| Citation | 49 S.E.2d 886,204 Ga. 345 |
| Parties | DORSEY v. STATE. |
| Court | Georgia Supreme Court |
Rehearing Denied Oct. 13, 1948.
Syllabus by the Court.
1. On the trial of one indicted on two counts for rape, where the testimony of the two females was corroborated in some particulars, and the evidence was otherwise sufficient to authorize a verdict of guilty, the general grounds of the defendant's motion for new trial were without merit.
2. Evidence on the trial of this case, showing that the defendant had committed crimes similar to those charged in the indictment in the same general vicinity, and had surprised and overcome his victims by a common method, was admissible for the purpose of showing the state of mind of the defendant by indicating a general plan or scheme such as would constitute an exception to the general rule that evidence of the commission of a crime other than the one charged is generally not admissible.
(a) In accordance with a previous decision by this court, the defendant's rights were not prejudiced by the court's instruction to the jury to the effect that evidence as to the commission of other crimes had been admitted 'solely for the purpose of showing the mind of the defendant;' and since the charge was not otherwise erroneous, no ground for a new trial is shown by reason of this charge.
3. While no presumption of guilt arises by failure of the defendant to introduce witnesses in his own behalf, yet it is proper for the solicitor to argue to the jury any inferences of fact which might reasonably be arrived at from the evidence. Since the defendant had said in his statement to the jury, and since the defendant had not produced the witnesses referred to in his statement, it was not error for the solicitor to argue to the jury his inference to the effect, Statement of facts by JENKINS, Chief Justice:
The defendant, Andrew Dorsey, was indicted on two counts for rape, in that he had carnal knowledge of one Bertie Mae Kelley on January 27, 1947, and with one Sara Crumley on September 8, 1947, in the manner set out in the indictment. The defendant entered a plea of guilty. The jury returned a verdict of guilty without a recommendation. An amended motion for new trial was filed and overruled upon all the grounds. Exceptions are to that order. The questions thus presented relate to the sufficiency of the corroboration of the injured females; the admissibility of evidence of the commission of similar crimes; the charge of the court with respect to the purpose for which such testimony was allowed; and an alleged improper and prejudicial argument to the jury by the solicitor.
Harris, Henson & Spence, of Atlanta, for plaintiff in error.
Paul Webb, Sol. Gen., William Hall, William T. Boyd, and Dan P. Winn, all of Atlanta, and Eugene Cook, Atty. Gen., for defendant in error.
1. The general grounds of the defendant's motion for new trial raise the question of the sufficiency of the evidence to corroborate the testimony of the two females against whom the defendant was convicted of the charge of rape; it being conceded by counsel for the defendant that, 'In the event there was sufficient corroboration of their respective stories, there is probably sufficient evidence to convict.' In this connection, assuming that it is still the rule, as held by a majority of the Justices in Davis v. State, 120 Ga. 433, 48 S.E. 180, that there can be no conviction of any rape unless the testimony of the female is corroborated (but see, in this connection, Griffith v. State, 176 Ga. 547, 168 S.E. 235), it therefore becomes necessary to consider the extent and nature of the corroboration required to support a conviction. The law does not fix the quantum, nor is there any prescribed rule for measuring the amount or extent of corroboration required. Lee v. State, 197 Ga. 123, 124(2), 28 S.E.2d 465. However, there are certain facts and circumstances which our courts have recognized as indicia of corroboration, such as those stated in Davis v. State, 120 Ga. 433, 48 S.E. 180, as follows: 'Unless [the victim] made some outcry, or told of the injury promptly, or her clothing was torn or disarranged, or her person showed signs of violence, or there were other circumstances which tend to corroborate her story.' Ultimately, however, the question as to whether or not the testimony of the female has been corroborated is, like the question of credibility of witnesses, one solely for the jury to determine. Wright v. State, 184 Ga. 62, 190 S.W. 663; Suber v. State, 176 Ga. 525(2 a), 168 S.E. 585; Smith v. State, 77 Ga. 705. For this reason, if there be any corroborative evidence at all, it is not for this court to pass upon its probative value; but the verdict of the jury under a proper charge from the court, having resolved that issue and having the approval of the trial judge, will not be disturbed.
Turning now to the evidence, we shall consider first that of the female Bertie Mae Kelley, who testified in substance that on the night of January 27, 1947, she, while walking alone on the street, was accosted by the defendant whom she had never seen before. Under threats that she would be killed if she did not accede, she was forced to go behind a nearby house which was occupied by white people. She testified that she scuffled with her assailant on the ground before he accomplished his purpose, which was fully testified to; that immediately after he had released her, she went up onto the porch of the people behind whose house the act had occurred; that she was crying; and that she reported the incident to the white people who lived in the house. She later positively identified the defendant in a police line-up of eight other colored men of about the same age and physical characteristics as the defendant. This witness's testimony was corroborated by the white lady to whom the attack had first been reported, as follows: The detective who investigated the complaint testified: 'I went to the scene where she was supposed to have been raped, on the morning of January 29th; Bertie Mae carried us to a place in the backyard of a house facing Georgia Avenue at the corner of Ami, and there were different footprints and marks on the ground, and a place wallowed out in the ground.'
Sara Crumley, the other victim, testified, in substance, that at about five o'clock in the morning on September 8, 1947, while on her way to work at a girls' home on Washington Street, the defendant whom she had never seen before jumped from behind high bushes on Capitol Avenue and threw a knife around her neck and marched her behind some houses. That under threats of violence he accomplished his purpose, which was fully testified to, and that immediately afterwards, without going to her place of work, she returned to her home and reported the attack to her aunt with whom she was living, and then took a bath before reporting to work; that her dress had been wrinkled and dirtied, and there was dirt on the back of her head. She testified that she had a good look at her assailant, and that she had described him to her employer when she reported to work that same morning. This victim also identified the defendant at a police line-up. This testimony was corroborated as follows: The victim's employer testified:
Under the law and the evidence above set out, since it can by no means be said as a matter of law that the testimony of each of the two injured females was not corroborated in some particulars, and since the jury, under a proper charge from the court, has determined to their satisfaction that the corroboration was sufficient to convict, and since that verdict has the approval of the trial judge, it will not be set aside...
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