Griffith v. State
| Decision Date | 22 February 1933 |
| Docket Number | 9058. |
| Citation | 168 S.E. 235,176 Ga. 547 |
| Parties | GRIFFITH v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
Act prohibiting conviction for rape of female under 14 on unsupported testimony of prosecutrix applies solely to statutory, as distinguished from forcible, rape (Laws 1918 p. 259, § 2).
Conviction for rape on uncorroborated testimony of prosecutrix held not sustainable.
In rape prosecution, prosecutrix' testimony that she complained to teacher, where teacher testified that prosecutrix made no complaint, did not corroborate prosecutrix, since it came from prosecutrix.
Testimony of complaint to mother seven weeks after alleged rape together with physician's testimony regarding results of examination made shortly thereafter, held insufficient to corroborate prosecutrix.
Testimony, including testimony of mother that prosecutrix complained to her about seven weeks after the alleged commission of the offense, and testimony of the physician that shortly after such complaint he, at the request of prosecutrix' parents, examined her person and found that the hymen had been ruptured, but that he could give no opinion as to whether such condition was caused by an act of intercourse or not, did not, in view of the long and unreasonable delay, amount to any degree of corroboration.
Error from Superior Court, Chattooga County; James Maddox, Judge.
Fay Griffith was convicted of an offense, and he brings error.
Reversed.
F. W. Copeland, of Rome, and S.W. Fariss, Jr., of La Fayette, for plaintiff in error.
M. Neil Andrews, Sol. Gen., and Horace D. Shattuck, both of La Fayette, and Lawrence S. Camp, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.
Syllabus OPINION.
1. The Act of July 31, 1918 (Ga. Laws 1918, p. 259), providing, among other things, that any person having sexual intercourse with a female under the age of 14 years shall be guilty of rape, and "that no conviction shall be had for said offense on the unsupported testimony of the female in question" (section 2), was intended to apply only to cases where the act of intercourse is accomplished with the actual consent or acquiescence of the female, and is to be treated as rape merely because the female is under the age of consent as therein specified. Accordingly, the statute referred to did not change the rule as to the necessity of corroboration in cases not falling within its provisions. Under the evidence, the present case is not one to which the act of 1918 is applicable, and for this reason does not require any decision as to the degree of corroboration, essential under the provision of the act as quoted; but any question as to the necessity of corroboration or as to the sufficiency of the evidence in the particular case must be determined without reference to that statute. See, in this connection, Connell v. State, 153 Ga. 151 (6), 111 S.E. 545; Cofer v. State, 163 Ga. 878 (3c), 137 S.E. 378; Chapman v. State, 112 Ga. 56 (2), 37 S.E. 102; Bledsoe v. State, 135 Tenn. 145, 185 S.W. 1073; People v. Downs, 236 N.Y. 306, 140 N.E. 706; McLaurin v. State, 129 Miss. 362, 92 So. 289; 52 C.J. 1102, 1103.
2. Under the rule laid down by the majority in Davis v. State, 120 Ga. 433, 48 S.E. 180, there can be no conviction of the offense of rape on the uncorroborated testimony of the female. This rule will be followed in the present case. See, also, Vanderford v. State, 126 Ga. 753 (6), 55 S.E. 1025; Smith v. State, 161 Ga. 423 (7), 131 S.E. 163; Fields v. State, 2 Ga.App. 41, 58 S.E. 327.
3. Where the female alleged to have been raped was a schoolgirl, and testified that on being excused by her teacher to answer a call of nature she repaired for that purpose to a nearby building, where the defendant surprised and seized her and accomplished the act of intercourse forcibly and actually against her will, with the result that she was hurt and bruised and her underclothing torn, and that she at once reported the occurrence to her teacher, but where the teacher who was also introduced as a witness testified that the girl had made no such complaint to her, and testified to no other corroborating fact or circumstance, and there was no other testimony tending to show complaint, the asserted fact of complaint, being dependent for its proof solely upon the testimony of the female, did not constitute a corroboration of this witness. Boling v. State, 91 Neb. 599, 136 N.W. 1078; Hudson v. State, 97 Neb. 47, 149 N.W. 104; State v. Hagedorn, 199 Iowa 1068, 203 N.W. 240; 52 C.J. 1104, 1105.
4. The testimony of the mother that the girl complained to her at the time which was about seven weeks after the alleged commission of the offense, together with testimony of a physician that shortly after such complaint he, at the request of the girl's parents, examined her person and found that the hymen had been ruptured, but that he could give no opinion as to whether this condition was caused by an act of intercourse, did not, in view of the long and unreasonable delay, amount to any degree of corroboration; and, there being no evidence which tended more in the direction of corroboration than that which is referred to in this and the preceding paragraph, the verdict of guilty depended solely upon the uncorroborated testimony of the female; and under the ruling in Davis v. State, supra, the conviction was unauthorized.
5. The special grounds of the motion for a new trial do not show reversible error.
Judgment reversed.
The writer is authorized to say that the rulings made in the first paragraph of the syllabus represent the views, not only of himself and Mr. Presiding Justice BECK, but also of Mr. Chief Justice RUSSELL and Mr. Justice GILBERT, notwithstanding the two last named are dissenting from the other rulings as to the necessity of corroboration and from the judgment of reversal. If the present case is not one to which the act of 1918 is applicable, the question arises as to whether the case should be governed by the rule enunciated in Davis v. State, 120 Ga. 433, 48 S.E. 180, to the effect that a conviction of the offense of rape cannot be had on the uncorroborated testimony of the female. The ruling so made was not by a full bench; and, there being no unanimous decision by this court to the same effect, the justices would be free, so far as precedent is concerned, to lay down a different doctrine at any time a majority might deem it proper to do so. The writer, to whom the question is now for the first time presented, is not entirely satisfied with the soundness of the decision in the Davis Case. See Noonan v. State, 117 Neb. 520, 221 N.W. 434, 60 A.L.R. 1124, note, and cit.; C.J. 1039, § 131. There are certain considerations, however, which constrain him to apply the rule in the present case, regardless of its correctness. The decision in the Davis Case has been followed by the profession and by the trial courts, passively at least, for more than a quarter of a century; and, if the writer alone should join the ranks of the present dissenting justices, such action would result only in an evenly divided bench, causing the present judgment and others of like kind to be affirmed by operation of law and creating confusion as to the proper rule to be followed. It is deemed more desirable to apply the doctrine of that case than to attempt to overthrow it, when the effort to do so could result only in an even division of the justices.
Furthermore, the present case was tried upon the theory that corroboration was necessary. The attorneys on each side proceeded upon that assumption, as did also the trial judge. Neither the solicitor general nor the Attorney General has contended that corroboration was unnecessary, but the contrary has been impliedly conceded. In these circumstances it would hardly be a fair disposition of the case either for the court to hold that corroboration was unnecessary and thereby affirm the judgment, or for the judgment to be affirmed in consequence of an evenly divided bench. Since the writer is of the opinion that the rule of the Davis Case should be applied in the case at bar for the reasons stated, he deems it unnecessary to commit himself at this time as to whether the rule is sound or unsound as a legal principle, and that question remains open so far as the writer is concerned.
ATKINSON and HILL, JJ., concur in the judgment of reversal. Independently of the act of 1918, the defendant could not be convicted on the...
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Griffith v. State, 9058.
...176 Ga. 547168 S.E. 235GRIFFITH .v.STATE.No. 9058.Supreme Court of Georgia.Feb. 22, 1933.Syllabus by Editorial Staff.[168 S.E. 236] Error from Superior Court, Chattooga County; James Maddox, Judge. Fay Griffith was convicted of an offense, and he brings error. Reversed. F. W. Copeland, of R......