Frady v. State, 19113
| Decision Date | 15 November 1955 |
| Docket Number | No. 19113,19113 |
| Citation | 90 S.E.2d 664,212 Ga. 84 |
| Parties | Junior FRADY v. The STATE. |
| Court | Georgia Supreme Court |
J. Ray Merritt, Buford, for plaintiff in error.
H. G. Vandiviere, Sol. Gen., H. L. Buffington, Jr., Canton, Eugene Cook, Atty. Gen., Rubye G. Jackson, Atlanta, for defendant in error.
Syllabus Opinion by the Court.
Junior Frady and James Whitt were jointly indicted in Cherokee County for the offense of rape. They were separately tried. Frady, after pleading to the merits made an oral motion to quash the indictment on the ground that it was vague and indefinite. The motion to quash was denied, and complaint is made of this ruling in one of the special grounds of the motion for new trial. The jury convicted him of the offense charged, recommended mercy, and fixed his punishment at from one to one year in the penitentiary. His amended motion for a new trial was denied and he excepted to that judgment. Held:
1. Where the accused desires to take exception to the form of an indictment, it is necessary that he do so by demurrer or motion to quash, made in writing and before pleading to the merits. Code, §§ 27-1501, 27-1601; Gilmore v. State, 118 Ga. 299(4), 45 S.E. 226. And an exception to the denial of a motion to quash the indictment cannot be properly made a ground of a motion for new trial, as here undertaken. Boswell v. State, 114 Ga. 40, 39 S.E. 897; Foss v. State, 15 Ga.App. 478, 83 S.E. 880, and cases decided by this court as there cited.
2. During cross-examination of the complaining witness, she was asked by defense counsel: Q. 'You never have been out with Junior Frady and Ed Streetman and Buck Streetman?' To this question, counsel for the State interposed an objection. The Court: 'Are you asking her about some other boys besides this defendant?' Counsel for the defendant: 'I am asking her if she knew these boys and if she had ever been out with them.' The Court: 'I sustain the objection.' The exception to this ruling is well taken. The right of cross-examination, thorough and sifting, belongs to every party as to the witnesses called against him. Code, § 38-1705. It is a substantial right, the preservation of which is essential to a proper administration of justice, and extends to all matters within the knowledge of the witness, the disclosure of which is material to the controversy; and being a substantial right, it should never be abridged or denied by the court. News Publishing Co. v. Butler, 95 Ga. 559, 22 S.E. 282; Becker v. Donalson, 133 Ga. 864(4), 67 S.E. 92; Rabun v. Wynn, 209 Ga. 80(5), 70 S.E.2d 745. In prosecutions for rape the defense may introduce evidence tending to prove the previous unchaste character of the female; and this evidence is admissible for two purposes: one to discredit her as a witness, and the other to disprove the charge that the intercourse was forcible and against her consent. Seals v. State, 114 Ga. 518, 40 S.E. 731. And when, as in this case, the alleged victim of the rape is sworn as a witness for the State, justice and the defendant's constitutional right to a fair trial require that his counsel be permitted to cross-examine her thoroughly as to any prior act of lewdness with the accused and with other men. For the offense of rape death may be inflicted on the defendant as the punishment therefor, and there is no logical reason why the alleged victim, while testifying as a witness for the State, should not be required to disclose all facts known to her which are relevant and material to the case. Due to the fact, as Lord Hale puts it, 'that this accusation is easily made, hard to prove, and harder to be defended by the party accused, notwithstanding his innocence,' the defendant ought not to be deprived of his right to a thorough and sifting cross-examination of any person called to the witness-stand against him; and as to a party's right to cross-examine all witnesses called against him, Code, § 38-1705 makes no exception as to the complaining witnesses in rape cases. We have not overlooked the majority rulings in Andrews v. State, 196 Ga. 84, 26 S.E.2d 263, and Teague v. State, 208 Ga. 459, 67 S.E.2d 467, 472, but we have...
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