Gordon v. State

• Decision Date: 15 September 1938
• Docket Number: 12445.
• Citation: 198 S.E. 678,186 Ga. 615
• Parties: GORDON v. STATE.
• Court: Georgia Supreme Court

198 S.E. 678

186 Ga. 615

GORDON v. STATE.

No. 12445.

Supreme Court of Georgia

September 15, 1938

Error from Superior Court, Miller County; C. W. Worrill, Judge.

Haywood Gordon was convicted of rape, and he brings error.

Affirmed.

B. C. Hays, of Colquitt, for plaintiff in error.

R. A Patterson, Sol. Gen., of Cuthbert, Hooper & Hooper, of Atlanta, M. J. Yeomans, Atty. Gen., Ellis G. Arnall, Asst Atty. Gen., and E. J. Clower, of Atlanta, for the State.

Haywood Gordon was convicted of the offense of rape, and was sentenced to serve ten to fifteen years in the penitentiary. His motion for new trial on the general grounds was amended by adding a special ground assigning error on the admission of testimony of the female alleged to have been raped, over objection that she was a child of tender years and incompetent to testify. The motion was overruled; the defendant excepted.

Ruby McKinnon, the prosecutrix, testified in part: 'I am nine years old. Yes, I know Haywood Gordon. Yes, that is him sitting there. I have known him ever since last year. He is my brother-in-law. I did have trouble with him in June of this year. He raped me. I was in his house, in a little room. He did bother my clothes; yes he did take some of them off. * * * He did rape me. I was lying down. He put me down. Yes, he did put his organ in my little organ. It did hurt me. Yes, I did bleed from that.' A physician who examined her on the day of the occurrence testified that in his opinion her privates had been penetrated by a male organ; that 'Yes I did find penetration. Yes, in the vagina. Yes, I found laceration. I would hardly say it was made with a stob. * * * Yes, there was laceration. Yes, there was some on this child on the inside. The main one was downward toward the rectum, which was caused by a large object going into a smaller one. * * * It was probably an inch tear.' After the State rested, the defendant made a statement, to the effect that the little girl came in the house where he had gone from the field on account of a headache, and told him she had fallen on a stob and injured herself; and that he then called her mother to her. Mrs. McKinnon, the child's mother, testified that when she reached the house after being called by the defendant, the girl said she had hurt herself by falling on a stob; that at this time the defendant was in the room with her and the child; that later, after the defendant had left, the child said he had raped her. The child also testified: 'Yes, I did tell my mother that I did fall on the steps. Haywood told me to tell her that. * * * Haywood Gordon told me he would kill me if I didn't say I fell on a stob.'

After the evidence was concluded counsel for the defendant requested that the court inquire into the competency of Ruby McKinnon. She was recalled to the stand, and testified 'I am nine years old. No, I don't know right from wrong. Yes, I know what it is to tell the truth. Yes, I have done that. Yes, I know I will be punished if I tell a lie. * * * No, I do not know what I was doing when I held up...