Harper v. State, 15514.

• Decision Date: 03 July 1946
• Docket Number: No. 15514.,15514.
• Citation: 39 S.E.2d 45
• Parties: HARPER . v. STATE.
• Court: Georgia Supreme Court

39 S.E.2d 45

HARPER .

v.STATE.

No. 15514.

Supreme Court of Georgia.

July 3, 1946.

Syllabus by the Court

1. Under an indictment charging rape, a charge on the law of assault with intent to commit rape is not authorized when the evidence shows a full accomplishment of the crime charged, and there is no evidence of an assault not included in the perpetration of the offense. In such circumstances a verdict of assault with intent to commit rape would be contrary to evidence and without evidence to support it.

2. Though it is ordinarily inapt in a criminal case to give in charge the Code, § 38-107, and in such cases it is the better practice never to do so, the instruction is not reversible error if harmless, as here. The complaint is that the charge omitted from this section the provision that the jury may consider "their means and opportunity for knowing the facts to which they testify." The omission was not hurtful, and the court was not required to enumerate every item in the section.

3. The evidence was amply sufficient to support the verdict, and the jury was satisfied with the sufficiency of the corroboration, as the quantum required, assuming that corroboration was necessary in this case.

HEAD, J., dissenting.

Error from Superior Court, Fulton County; Bond Almand, Judge.

Will Harper was convicted of rape, and he brings error.

Affirmed.

Will Harper was convicted, without recommendation, in Fulton superior court, of the rape of Mrs. Frances Moore. To the overruling of his motion for new trial on the general grounds, as amended by three special grounds, he excepted. On the trial the evidence was substantially as follows:

Mrs. Frances Moore, the prosecutrix, testified: On Saturday night, August 25, 1945, she was at home on 418 Pryor Street, Atlanta, Fulton County, Georgia, with two of her small children, one six months and the other three years old. Her other child, aged 9, was in a hospital. Her husband was in the Army. That evening she was lying across her bed reading when someone knocked on her door and called "Western Union" or "telegram." She opened the door to find the defendant there, who said he wanted a match. She told him that she did not have one, and he then said that it was she whom he wanted, and immediately came into her room, grabbed her by the arm, bent it back and threw her across the bed. He hit her in the stomach, rendering her powerless to do anything. She tried to fight him off but couldn't, and he had intercourse with her against her will and without her consent. She tried to fight him off to prevent it but couldn't. He completed the act of intercourse. She was wearing a gown and house coat at the time. The coat was loosely fastened and in jerking it open it was torn a little. She attempted to make an outcry but didn't know for sure whether she screamed. He ran after completing the intercourse. As soon as she was able to get to her feet, she "slammed" the door, he ran out another door of her room into the yard, and she "screamed for help." She told two women whom she did not know that a negro had attacked her and asked them to call the police. She did not tell them at first that she had been attacked. A crowd of people soon gathered in her yard. In a short while the police came. She reported that she had been attacked, but did not tell them at that time that she had been raped. After the crowd began to leave, Mrs. Arnold took her and the two children to her home where they spent the night. She "got a glimpse" of the defendant the next Monday afternoon, but did not report it. The following Thursday she saw him again on the street in front of her house, and told her husband to follow him. The police later brought the defendant to her home, with other negroes, and she identified him as the man who had attacked her. The following Tuesday she identified him again from a line-up at the police station. She positively identified the defendant as the man who attacked her. Her two children, who were asleep, were the only other persons in her home when she was raped.

On cross-examination, she testified that she thought the defendant lived in the second house below her. She could not say whether she had seen him around there before, but possibly had since a lot of colored people used her yard as a pathway. Her home was formerly used as a "drive-in, " and was located back from the street. She didn't know whether it was a hundred feet or not. Colored and white people lived in the adjoining two-story building. She had only talked to a couple of negro women there when she wanted some work done, but did not know their names. She had visited up and down a corridor between the buildings at 414 and 416 Pryor Street where the negroes enter and go out. Her husband arrived home on Monday following the rape, and she told him what had occurred as soon as he arrived. She remembered the defendant by his face. She had a light over her bed, which he pulled out after he came in the room, but it was on long enough for her to see and recognize him. After her husband camehome and she had to tell him what happened, she was completely unconscious, raving, for approximately a week. She knew a negro woman named Mary, but did not talk to her at all the night when she was raped. The day after the rape she stayed at home all day typing letters, and did not talk to any of the colored people. She did not tell any one that the defendant only touched her on the arm but did not have intercourse with her.

I. A. Thomas testified for the State: He was a detective for the City of Atlanta, on duty August 25, 1945. In a minute or so after receiving a report, he went to the residence of Mrs. Moore. She was hysterical and very upset when he arrived and acted like she was "scared about half to death." He had to get her quiet before he could get much out of her about what happened. She made a report to him and gave a description of her assailant and he began to search for someone. He saw the defendant for the first time on August 30 at the police station. Later he requested Mrs. Moore to come down for the purpose of identifying her assailant, and without any indication as to which one had been arrested as a suspect, she immediately pointed out the defendant, from a line-up of six, as the man who had attacked her.

Mrs. Emily A. Moses testified for the State: She received a report about the excitement at the Moore home and telephoned it to the officers.

Mrs. Jessie Arnold testified for the State: Mrs. Moore sent for her on the night of August 25. She did not know how long it was after the rape before she saw Mrs. Moore. The yard was full of people when she arrived. Mrs. Moore was in a "nervous rage, " "crying and wringing her hands, " and told her what had happened. After the excitement had subsided, she took Mrs. Moore and her two children home with her. They stayed there until the following morning.

Robert J. Tweedell testified for the State: He went with his sister, Mrs. Arnold, to Mrs. Moore's house. Several people were in the yard. Mrs. Moore did not mention any name that night as to who had raped her. He did not remember any specific description which she gave of the person who had raped her. He spent the night in Mrs. Moore's house.

D. S. Harris testified for the State: He was a city policeman. In answer to a call, he went to a place on Pryor Street, picked up the defendant and two other negroes, and took them before Mrs. Moore, who, before any one spoke, and as soon as they walked into her room, pointed out the defendant as the man who had attacked her. Only Mrs. Moore, her husband, and an elderly-like woman were in the room at that time. A negro woman was standing in the yard about 15 feet from the door. He answered the call on the night of August 25, and Mrs. Moore told him that the defendant had come to the door, grabbed, and attacked her, but did not tell him that the defendant had intercourse with her.

On cross-examination, he further testified that when he answered the first call Mrs. Moore told him that her assailant had broad shoulders, but did not say anything about him being very black or having a hand missing. She said at that time that he had grabbed her but did not attack her, that he did not consummate the rape, and that he did not have sexual intercourse with her. Later the witness testified that she did not say that he did not have intercourse. She did not say that he did not have intercourse, and she did not say that he did. She said that he had attacked her. He did not know what she meant by "attacked her." He did not ask her if there was a penetration. He did not recall having testified before that she had said that he did not have intercourse. He did not think that he did. Mrs. Moore's house is between 50 and 75 feet from the street.

The defendant relied on the defense of alibi, and introduced evidence to show that he was sick on the night of August 25, and at home in bed at the time of the alleged rape. He also offered witnesses, who swore that Mrs. Moore had made statements to the effect that the rape had not been consummated.

Mrs. Katie Phillips testified: She lived at 416 Pryor Street. Two or three nights after the alleged rape, she visited Mrs. Moore, who was sick and had a nervousbreakdown. Mrs. Moore told her that she should have been there when a negro broke in on her and when she had all the law down. She said that he only caught her by the arm but did not hurt her. She did not ask her any more about it.

Mary Evans, a colored woman testified: She lived at 412 Pryor Street. On the evening of August 25 Mrs. Moore asked her to come over to her home. She did not know what time it was, but thought it was about 8:30 or 9 o'clock, 7:30 or 8 o'clock. She was the first one to see Mrs. Moore before she called the police. Mrs. Moore told her a "damned negro" knocked at her door and asked for a match, but she did not give it to him. She told her that he was a tall, black, broad-shouldered man, and that he did not get...