Elliott v. State
| Decision Date | 25 September 1940 |
| Docket Number | 13410 |
| Citation | 10 S.E.2d 843,190 Ga. 803 |
| Parties | ELLIOTT et al. v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where the testimony of the injured female makes a case of rape, the jury is the sole judge of her credibility; and although she made no outcry and failed for nine days to make known the fact that she had been attacked, the jury was authorized to credit her testimony despite these circumstances, especially in view of the facts and circumstances detailed in the opinion.
2. While the injured female was under cross-examination she began to cry, and the court ordered the trial to suspend, and that the witness be carried to her mother. It was not an abuse of discretion to overrule a motion to declare a mistrial based upon this fact.
3. Where a witness on cross-examination makes answers not responsive to the questions, but no request is made of the court to require responsive answers, no objections are made and no effort is otherwise made during the trial to avoid any injury such answers might have inflicted, a ground of a motion for a new trial complaining of such conduct of the witness is without merit.
4. A ground of a motion for new trial, which merely recites that counsel for defendants had a right to thoroughly cross-examine the injured female, and that her continuous crying and refusal to answer questions handicapped counsel in making a successful defense, but showing no ruling of the court, and no appeal to the court for aid in obtaining answers from the witness, is without merit.
5. The fact that a defendant is in custody of the sheriff when he makes a confession does not render such confession inadmissible against him. Testimony of the sheriff that the confession was made freely and voluntarily, and without threat or hope of reward, was sufficient foundation for its introduction in evidence in rebuttal of defendant's statement that he was innocent.
Buman (alias Boots) Boling, Eugene Elliott, and Ted Redd were indicted and convicted of rape, the jury recommending mercy and fixing the penalty of Boling at from five to three years and the penalty of Elliott and Redd at one year. Elliott and Redd made a motion for a new trial which was denied, and they excepted.
The alleged injured female testified, that she was seventeen years old at the time of the alleged crime; that on October 10, 1939, she eloped with the defendant Boling, and they were married; that she left home with Boling a few days before their marriage, and stayed with him in Forsyth County, Georgia, for a period of fifty-four days after marriage; that she and Boling left Forsyth County in a car with Elliott, and after traveling a short distance they picked up Redd; that shortly thereafter her husband told her that she was going to have to have sexual intercourse with the other boys; that she protested that she would not, and began crying, whereupon her husband said, 'None of that damn crying now'; that thereafter the car was stopped on the side of the road in Cherokee County, where her husband first attempted to pull her out of the car, then later walked to the back of the car and called her, and she went to see what he wanted; that he told her he had hired the boys to take them over there, and she would have to pay them in that way, and she told him she had rather die than do it; that her husband said, 'That ain't nothing; we are married, and them other boys said they wouldn't tell anybody'; that the other boys wer present and heard these statements; that she leaned against the fender of the automobile and started crying; that Elliott caught her by one arm and Boling by the other, and by pulling carried her across the gully; that after they had got out of the gully Elliott told Boling that he could manage it, and Boling stood there on the bank of the road while Elliott pulled her out into the woods out of sight of the road; that she caught hold of a pine tree, but Elliott got her loose, pushed her to the ground, and had sexual intercourse with her; that she tried to get loose, tried to push him away, and was crying; that when he had finished he went back to the car and she leaned against a tree crying; that soon afterward Redd came and shoved her down and had sexual intercourse with her, although she tried to get away from him and tried to push him away, after which she stood there crying until Boling, her husband, came and commanded her to get in the automobile, which she did; that they all rode in the automobile to Deen Hembree's where they stopped, and Elliott and Redd turned and went back; that after this stop she and her husband went to the home of Will Gayton, a distance of about a mile and a half, and ate supper; that she and her husband remained at Gayton's for a week thereafter, the crime having been committed on the third Monday in November, 1939; that the witness' mother visited her for two or three hours on Thanksgiving, but she told no one what had happened to her until Wednesday after Thanksgiving, when she told her mother, who in turn told her father; that her father told her, before she eloped with Boling, that if she left with him she could be his 'little whore,' and should never be permitted to return to his home, and when she went home on Wednesday after Thanksgiving her father told her that she could not remain there, but after he learned what had happened she was permitted to remain, and the prosecution was instituted.
The father testified, that she went with him and pointed out the place where she said the attack had been made upon her; that he saw car tracks to the side of the road, and saw on the bank a woman's track as well as a man's track; and that it had recently rained and there was pine straw in the woods and he could not see any sign, but she pointed out the place in the woods where she said she was attacked. Arthur Collett corroborated the testimony of the father about a woman's track and men's tracks, as well as seeing where an automobile had pulled out by the side of the road. Rufe Hembree testified that he was at his father's house when the defendants and Boling's wife stopped there shortly after dark, and that he did not notice the girl crying, but that she had been crying and was 'snubbing.' The mother testified, that the daughter told her of this attack after being in her home nearly two days; that her daughter did not tell her about it during her visit on Thanksgiving Day; that neither the daughter nor her husband acted right--neither would look at her or talk much; and that after witness told her husband he went and got warrants for the defendants. Sheriff Lee Spear testified, that he had the defendant Elliott arrested in Cumming, and brought him to the jail in Canton; that on the way from Cumming to Canton the defendant freely and voluntarily, without promise of reward and without threat, asked witness what he was charged with, and after being informed that the charge was rape, said that he did not see how they could make rape out of it, that they were all there together and stopped by the side of the road, that he went down in the woods with the Boling woman and had sexual intercourse with her, the other boy staying in the car, and that when he got back Redd went down there, but he did not know whether Redd had intercourse with her or not.
Each of the defendants made a statement, and Boling and Elliott denied that the car stopped at any time. Boling stated that he paid two dollars, which was all that he had, for the transportation; and that he had promised Elliott five dollars. Redd stated that Boling said, 'I promised you five dollars, but I ain't got but two, so I won't ask you to go no further;' and that they then turned around and went back. Elliott stated:
John F. Echols, of Atlanta, and R. E. Kirby, of Cumming, for plaintiffs in error.
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