Goldin v. State

• Decision Date: 25 May 1898
• Citation: 104 Ga. 549,30 S.E. 749
• Parties: GOLDIN. v. STATE.
• Court: Georgia Supreme Court

30 S.E. 749

104 Ga. 549

GOLDIN.

v.STATE.

Supreme Court of Georgia.

May 25, 1898.

Assault with Intent to Rape — Indictment — Conviction of Assault—Instructions.

1. While every rape necessarily includes a battery, there may be an assault with intent to rape without committing a battery on the female assaulted.

2. As there can be no lawful conviction of an offense not charged in the indictment, a verdict finding a man guilty of assault and battery upon an indictment for assault with intent to rape, in which no battery is charged, cannot stand.

3. This court certainly cannot undertake to say that a trial judge erred in instructing a jury not to be guided by the law read to them by counsel, when the record does not disclose what "law" was thus read.

(Syllabus by the Court.)

Error from superior court, Haralson county; C. G. Janes, Judge.

W. A. Goldin was convicted of assault and battery, and brings error. Reversed.

E. S. & D. G. Griffith and Edwards & Edwards, for plaintiff in error.

W. C. Roberts, Sol. Gen., Heart & Heart, G. R. Hutchins, and McBride & Craven, for the State.

LUMPKIN, P. J. The grand jury of Haralson county returned as true an indictment against W. A. Goldin for the offense of assault with intent to commit a rape. The only charge therein contained was that the accused "did attempt to commit a violent Injury upon the person of one M. E. Pope, a female, and did then and there attempt to have carnal knowledge of her, the said M. E. Pope, forcibly and against her will, contrary to the laws of said state, the good order, peace, and dignity thereof." Upon the trial of this indictment, the jury returned a verdict finding the accused guilty of assault and battery. He made a motion for a new trial, which, among other things, alleged that the verdict was contrary to law and to the evidence, and that the court erred in charging the jury that "if the defendant went to the bed of Mrs. Pope, but not with the intent to use force, but to desist if he was resisted, but, without her consent and actuated by lust, touched her person with his hand or any part of his person, he would be guilty of an assault and battery." This charge was excepted to on the ground that there was "no allegation in the indictment upon which to predicate such charge." Other grounds of the motion complained of certain charges based upon the theory that a conviction of assault and battery could be lawfully had upon this indictment. The motion also complains of alleged error by the judge In instructing the jury not to be guided by the law read to them by counsel on either side, but to take the law of the case from the court. The motion was overruled, and the accused excepted.

1, 2. It is an elementary principle of criminal procedure that no person can be convicted of any offense not charged in the indictment. There may, of course, be a conviction of a lesser offense than that expressly named In the indictment, where the former is necessarily included in the latter, and also in some cases in which the lesser is not so included in the greater...