Fields v. State

• Decision Date: 24 May 1907
• Docket Number: 199.
• Citation: 58 S.E. 327,2 Ga.App. 41
• Parties: FIELDS v. STATE.
• Court: Georgia Court of Appeals

58 S.E. 327

2 Ga.App. 41

FIELDS v. STATE.

No. 199.

Court of Appeals of Georgia

May 24, 1907

Syllabus by the Court.

In the charge of assault with intent to rape, the credit to be attached to the testimony of the injured female is a matter wholly for the jury. If such witness is credible to the jury corroboration of her testimony is unnecessary.

[Ed Note.-For cases in point, see Cent. Dig. vol. 42, Rape, § 83.]

It is not error, in a case of assault with intent to rape, to refuse to charge that the accused should not be convicted upon the testimony of the woman alone, unless she 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. The particular circumstances which may tend to corroborate a witness, and the number of such circumstances necessary to produce that result, are wholly matters for the jury; and the jury may believe the witness without corroboration.

On the trial of an indictment for assault with intent to rape, where the evidence is such that the jury may be authorized to find that the assault was committed by the accused with the intention of gaining the woman's consent to have sexual intercourse with him, without any intent to overpower her will and commit the crime of rape, it is error to refuse to give in charge the law of assault, or assault and battery, as the indictment may authorize.

In charging upon the prisoner's statement, a trial judge can employ no better language than that embodied in Pen. Code 1895, § 1010. Omission to instruct the jury that they may believe the defendant's statement in preference to the sworn testimony is reversible error.

Error from Superior Court, Muscogee County; Wm. A. Little, Judge.

James Fields was convicted of assault with intent to rape, and he brings error. Reversed.

Carson & McCutchen, for plaintiff in error.

S. P Gilbert, Sol. Gen., for the State.

RUSSELL J.

The defendant was convicted of assault with intent to rape. His motion for a new trial was overruled, and he assigns error on the judgment refusing a new trial. The plaintiff in error relies upon three assignments of error, all predicated upon the charge of the court.

He insists that the court erred in refusing a written request to charge the jury as follows: (a) "I charge you, gentlemen of the jury, that in a case where rape, or assault with intent to commit rape, is the charge against the defendant, that he shall not be convicted upon the testimony of the woman alone, unless there are some concurrent circumstances which tend to corroborate her evidence. In this respect the offense of rape seems to be an exceptional one, and the accused should not be convicted upon the testimony of the woman alone, however positive it may be, unless she makes 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." (b) "In rape cases the testimony of the party alleged to have been raped should always be scrutinized with care." In our opinion the court properly refused to instruct the jury as requested. The request seems to be almost a literal quotation of some of the language used in the opinion of the majority of the court in the case of Davis v. State, 120 Ga. 435, 48 S.E. 180; and, while it is a statement of the considerations which controlled the judgment of the majority of the Supreme Court, "there are many things said by this court, both in headnotes and opinions, that are sound law, but which nevertheless would be improper instructions to a jury." Savannah Ry. Co. v. Evans, 115 Ga. 318, 41 S.E. 631, 90 Am.St.Rep. 116. (2) This must naturally be true, for the reviewing court can analyze and discuss the evidence in a case with a freedom absolutely forbidden trial judges by Civ. Code 1895, § 4334; nor does it follow that the charge requested, even if it should be proper in a case of rape, was appropriate to a case like this, of assault with intent to rape.

The decision of the majority of the court in Davis v. State does not accord with our individual views, and seems to us to be an invasion of the constitutional prerogatives of the jury. We shall be bound by it, in view of the legal requirement to that effect, as applicable to cases of rape; but we shall not extend the principle therein embodied to cases of assault with intent to rape. The dicta of Judge Hale, upon which the decision in the Davis Case rests, refers only to cases of rape, and the reasoning is based upon the necessity for protection of the defendant from that speedy and uncontrollable indignation aroused by as heinous a charge as that of rape. This is recognized in the Davis Case. Rape, unless the accused be recommended to mercy, is a capital felony, and the dicta of Lord Hale seems to recognize the ghastly fact that there can come no remedy to the defendant after he has paid, with his life, the penalty of perjury on the part of the prosecutrix. On the other hand, the penalty for assault with intent to rape cannot at most exceed 20 years imprisonment in the penitentiary, and if, by any chance, the truth should develop that the accused was the innocent victim of a feigned charge and false accusation, some reparation, however late, could be afforded the defendant unjustly accused. We would be bound by the decision of the Supreme Court, if this court had jurisdiction to correct errors on convictions for rape; but we do not apprehend that the decision in Davis v. State was intended to apply to cases of assault with intent to rape, but rather that the ruling in that case, as drawn from the language of the decision, was based upon the exigencies arising from the gravity of the charge and the enormity of the penalty. We are the more impressed with this view by the fact that at the time Lord Hale wrote, assault with intent to rape was a mere misdemeanor, as, indeed, it was in our own state until 1817; and from 1817 to 1833 it was only punished by imprisonment from one to five years. The amount of corroboration, if any, required to support the testimony of a witness in a case of assault with intent to rape is a question, not for the court, but for the jury; and for the judge to instruct the jury that the accused should not be convicted, no matter how positive the testimony of the woman may be, unless she made some outcry or told of the injury promptly, or unless her clothing was torn or disarranged, would be for the judge, and not the jury, to measure the credibility of such witness.

In our opinion the testimony of the prosecutrix in a prosecution for the offense of assault with intent to rape needs no corroboration. Her testimony alone is sufficient to authorize conviction, if it is credible to the jury. Pen. Code, § 991 declares that the testimony of a single witness is generally sufficient to establish a fact. The only exceptions to this rule enumerated in our Code "are made in specified cases, such as to convict of treason or perjury, and in any case of felony where the only witness is an accomplice. In these cases (except in treason)...