Epps v. State
| Decision Date | 09 February 1961 |
| Docket Number | Nos. 21096-21098,s. 21096-21098 |
| Citation | 216 Ga. 606,118 S.E.2d 574 |
| Parties | Brannon EPPS v. STATE. George ALFORD v. STATE. Clifford JOHNSON v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
For the reasons set forth hereinafter in this opinion, the trial court did not err in denying the amended motion for new trial in each case.
Brannon Epps, Clifford Johnson, and George Alford, Jr., were indicted in the Superior Court of Troup County for rape. The crime was alleged to have been committed on August 1, 1959. The defendants were first tried jointly on August 10, 1959, and found guilty without a recommendation of mercy. On appeal the convictions were reversed. Johnson v. State, 215 Ga. 839, 114 S.E.2d 35. On the second trial they were again convicted without a recommendation of mercy. By separate bills of exception each of the defendants has excepted to the denial of his amended motion for new trial, the assignments of error being identical in each case.
James E. Weldon, L. M. Wyatt, La Grange, for plaintiffs in error.
Wright Lipford, Sol. Gen., Newnan, E. W. Fleming, Sol., Hogansville, Eugene Cook, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., for defendant in error.
1. With the exception of certain evidence as to the good character of the defendants Alford and Johnson, the evidence on this second trial of these defendants was substantially the same as that presented at the first trial. Since a statement of the facts was not given in the first opinion of this court, cited above (215 Ga. 839, 114 S.E.2d 35), a resume of the material evidence presented at the second trial is given below:
At about 10:30 on the night of July 31, 1959, the prosecutrix, a married woman, and her female companion went to Tanglewood, a dine and dance establishment near La Grange, Georgia. The prosecutrix testified that her husband was to come later, and she and her companion were to go home with him. He did not come, so they procured a ride with Aaron Brooks and Bonney Grizzard, paying Brooks $1 for the ride. On the trip home, Brooks stopped the car, and he and Grizzard attempted to have sexual relations with the women, but they were refused. Brooks and Grizzard testified that they thought they could go with the women, as they had heard that they would. As they neared La Grange, a Chevrolet pickup truck passed them and slowed down. When they attempted to go around the truck, the driver of the truck pulled over in front of the car and would not let it pass. This happened two or three times. Then Brooks, whose car had no reverse gear, turned in the street to let his car back to the side, planning to turn around. The truck backed in front of him and blocked him. Epps and Johnson got out of the truck, and Epps approached Brooks and demanded his money. Brooks gave him his pocketbook. Epps then asked who was in the car, and Brooks told him. While this conversation was going on, Grizzard and the two women jumped out of the car and ran up the street, which was in a neighborhood of apartment houses. Grizzard hid in some shrubbery around one of the houses, and the women ran on up the street. They met Robert Hubbard and Hubbard's girl friend, and asked them where a telephone could be found. At that time an automobile passed driver by Horace Lawson. Hubbard hailed the car, and the two women and Hubbard and his girl friend got in Lawson's car and started towards the police station. The pickup truck driven by Epps, which was headed in the opposite direction, turned around and followed the Lawson car, running up behind and bumping it several times. When Lawson attempted to turn into a street, the truck ran up on the side and blocked him. Lawson then tried to outrun the truck, but the truck ran into his car knocking it into a ditch. Epps got out of the truck, threw a knife on Lawson, threatened to cut his throat, and told him to get out of the car and to tell the women to get out. Johnson grabbed the girls and told them to get in the truck. They were crying and pleading with the defendants not to take them. Epps took the keys to Lawson's car and drove off with the two white females, saying they would be back. Johnson and Alford were also in the truck. Lawson and Hubbard went to a telephone and called the State Patrol to report the incident. Brooks and Grizzard reported the incident to La Grange police. After about an hour, Hubbard testified that the pickup truck returned, and that his keys were put back in his car.
The prosecutrix testified that Epps drove the truck out in the country, and that during the drive Johnson tore her brassiere and panties off; that Epps stopped the truck; that she didn't want to get out, but Johnson kind of shoved her and slapped her and she fell; that Johnson had intercourse with her, to which she did not consent; that, after Johnson had finished, Alford attempted to have intercourse with her, but he did not succeed; that Epps then had intercourse with her, with Johnson sitting on her head holding her; that they threatened them and said they would kill them if they did not submit to their demands; that Epps made them get back in the truck, and they drove out another country road to a place close to a church and near a cornfield, where Epps and Alford had intercourse with her; that the actions of the defendants in having intercourse with her were without her consent, and she submitted because she was scared.
The companion of the prosecutrix testified to substantially the same facts concerning what occurred up to the time the truck stopped out in the country and as to what happened after they returned and were put out of the truck at Edgewood Avenue. On objection by defense counsel, the trial court excluded her testimony as to what happened to her at the two places out in the country where she and the prosecutrix had been taken by the defendants.
The prosecutrix testified further that, at the second time the truck was stopped, she talked to Epps about meeting him again; that 'we promised if they would let us go that we would meet them at some graveyard * * * I told him that because I was scared'; that at or near the places where she had been assaulted, she threw some of her clothes out the window of the truck so as to identify such places that, at about daylight, Epps put them out on Edgewood Avenue; that she and her companion walked to her employer's place and got him to take them home; that she told him that they had had a rough time that night, but did not tell him right then what had happened; that he talked too much and she did not want anyone to know it right then; that she was too tired and scared to go to the police station right then; that they went home, washed and cleaned up; that, about 8 o'clock a. m., the police came and took them to the police station where she talked with Sheriff Bailey of Troup County.
A number of articles, including women's clothing, were introduced in evidence and identified as having been found at the two locations pointed out to the sheriff as being where the assaults took place.
Sheriff Bailey testified that the prosecutrix made a complaint to him of an occurrence that happened to her, and that the complaint was made sometime during the morning hours between the time he got to his office at 6:30 or 7 a. m. and noon of that same day. He identified the articles of clothing, and others, as having been located at and near the scenes pointed out to him by the prosecutrix and testified that he saw tracks at those places and that the grass was flattened.
The Sheriff of Coweta County testified that George Alford, Jr., told him that he had intercourse with the chunky one against her will; that the defendants referred to the women as the small one and the chunky one.
Evidence of the good character of George Alford, Jr., and Clifford Johnson was introduced by them, and each of the defendants made an unsworn statement. Epps stated that he had been to bed with the prosecutrix prior to the incident in question; that he paid her $5; that he had been with her three or four times; that he did not rape her; that he did not block the car; that 'those colored fellows was trying to get the girls for themselves'; that the argument was between them and that was why they reported it to the police; that there was 'no disagreement between the white ladies and us.' Johnson stated that 'it was an arrangement from Epps that we pick up these white girls'; that he assumed that Epps was driving and 'acting like that on arrangements which they previously made'; that he didn't force anyone to do anything against their will; that 'the women was paid to do what they was doing.' Alford stated: He also read a letter from the 'Clerk of the Court, Montgomery County, Ohio' wherein he stated that it was alleged that an examination of the records of the juvenile court, police records of Dayton, Ohio, and the prosecutor's attorney's office of Montgomery County, had been made, and no record had been found of any act involving Alford.
The defendants did not deny that they had had carnal knowledge of the prosecutrix, but contended that such had been done with her consent.
The evidence supports the verdict, and there is merit in the general grounds of the amended motion for new trial.
2. Special grounds 4, 5, 7, 8, 9, 10, 12, 15, and 17 involve the admission of certain evidence over objection by defense counsel.
a. Special grounds 4, 5, and 17 fail to show what evidence was illegally admitted, and for that reason are incomplete and insufficient to present any question for consideration by the court.
b. The statement of the prosecutrix complained of in special ground 7--that 'I was scared', as being the reason why she submitted to intercourse with the defendants--was not a conclusion on her part but was a statement of a fact,...
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