Hill v. State, 61890

• Decision Date: 10 September 1981
• Docket Number: No. 61890,61890
• Parties: HILL v. The STATE.
• Court: Georgia Court of Appeals

Page 703

283 S.E.2d 703

159 Ga.App. 489

HILL v. The STATE.

No. 61890.

Court of Appeals of Georgia.

Sept. 10, 1981.

Floyd W. Keeble, Jr., Royston, for appellant.

J. Cleve Miller, Dist. Atty., for appellee.

POPE, Judge.

J. I. Hill appeals his conviction of statutory rape of his nine-year-old daughter.

1. Appellant contends that the trial court erred in denying his motion for directed verdict of acquittal because the victim's testimony was not corroborated. The evidence showed that the victim's initial outcry was made to her aunt on Christmas Eve, 1978. According to the victim, she was scared to go home because appellant, her father, made her take off her clothes and go to bed with him. He had had sexual intercourse with her "about 20 times," the most recent of which had occurred approximately one week before her initial outcry. On these occasions the victim's mother would sleep on the couch while the victim slept with her father. Her father told her not to cry out during these episodes or he would whip her. Although the victim's mother testified that she never saw anything out of the ordinary between her husband and daughter, she confirmed that the victim had slept with appellant on several occasions while she had slept on the couch and elsewhere in the home.

We begin with the proposition that no conviction can be had for statutory rape based solely on the uncorroborated testimony of the victim. Code Ann. § 26-2018. Although corroboration is usually had by testimony other than the victim's which fairly tends to prove that the crime was committed and which connects the accused therewith, " 'corroborating identification evidence is not necessary' in statutory rape prosecutions." Chambers v. State, 141 Ga.App. 438, 439, 233 S.E.2d 818 (1977), revd on other grounds, State v. Chambers, 240 Ga. 76, 239 S.E.2d 324 (1977). Moreover, "[t]he quantum of corroboration needed in a rape case is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged... Slight circumstances may be sufficient corroboration, and ultimately the question of corroboration is one for the jury." Burnett v. State, 236 Ga. 597, 598, 225 S.E.2d 28 (1976).

" 'It is only when the evidence demands a verdict of not guilty that it is error for the trial court to refuse a motion for a directed verdict of acquittal.' " Barnes v. State, 245 Ga. 609, 610, 266 S.E.2d 212 (1980). The victim's testimony in this case was sufficiently corroborated and the evidence did not demand a verdict of acquittal.

2. Appellant also cites as error the trial court's failure to charge the provisions of Code Ann. § 38-1806, that the testimony of a witness who swears wilfully and knowingly falsely is to be disregarded unless corroborated by circumstances or by other unimpeached evidence. In order to make this provision applicable "it must appear, among other things, that the witness admits, on the trial, that he wilfully and knowingly swore falsely, or the testimony must be such as to render the purpose to falsify manifest." Smith v. State, 74 Ga.App. 777(2), 41 S.E.2d 541 (1947). "Under this rule ... it has several times been held, that if a witness swears at the trial to a certain state of facts in a material matter, and he has previously sworn to the contrary in the same case, and where he admits that his testimony was false, this constitutes a wilful and knowing false swearing, and requires the jury to reject his testimony entirely, unless it be 'corroborated by circumstances or other unimpeached evidence.' In such a case it has been held that the judge should so charge the jury, even without a request." (Emphasis supplied.) Smaha v. George, 195 Ga. 412, 418, 24 S.E.2d 385 (1943).

The pertinent testimony, that of the nine-year-old victim, is as follows: "Q. Had Ricky done something to you, honey? A. Yes sir. Q. He had done the same thing that you say your daddy did to you? A. Yes sir. Q. Do you remember when this happened? A. Yes sir. Q. When was it? A. When I was seven. Q. When you were seven? A. Yes sir. Q. Did it happen anytime since then? A. I can't remember. Q. You can't remember? A. No sir. Q. Michelle, do you remember, honey, when we had the hearing before just me and you and the Judge in his office over there? A. Yes sir. Q. And I asked you if he had ever done anything to you. Do you remember that? A. Yes sir. Q. And do you remember what you told me? A. Yes sir. Q. What did you tell me? A. That he hadn't done it to me. Q. That he hadn't...