Jackson v. State, 25258

Decision Date29 September 1969
Docket NumberNo. 25258,25258
Citation170 S.E.2d 281,225 Ga. 553
PartiesNorman JACKSON v. The STATE.
CourtGeorgia Supreme Court

Syllabus by the Court

1. Where, on the trial of one charged with rape the defendant admits his presence at the time and place in question, no issue is presented as to his identity, and the admissibility of testimony identifying the defendant as having been present is not an issue in the case.

2. Enumerations of error 7, 8 and 9 complaining of the sustaining of objections to certain questions propounded by counsel for the defendant to witnesses for the State while on cross-examination fail to show that any relevant matter was excluded.

3. The written statements of the defendant were sufficiently authenticated to authorize their admission in evidence.

4. In enforcing its lawful orders the trial court did not commit error in holding counsel for the defendant in contempt of court or in ordering counsel placed under arrest when the trial recessed.

5. The writings signed by the defendant were sufficient to constitute confessions and the trial court did not err in charging the law relating thereto.

6. The court correctly instructed the jury on the contentions of the defendant.

7. The requests to charge dealt with in division seven of the opinion were substantially covered by the general charge and the refusal to give them was not error.

8. Under the circumstances of this case, the failure of the court to define 'reasonable doubt' even though requested to do so in writing was not error.

9. The evidence showed that rape was perpetrated on the victim and therefore a charge on assault with intent to commit rape was not required.

10. The trial court sufficiently responded to the jurors' request for additional instructions and there was no occasion for the court to re-define the crime of rape since the jurors were not seeking additional instructions in this regard.

11. The evidence authorized the verdict.

B. Hugh Ansley, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Tony H. Hight, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Exec. Asst. Atty. Gen., Marion O. Gordon, Mathew Robins, Asst. Attys. Gen., Atlanta, for appellee.

FRANKUM, Justice.

Norman Jackson was jointly indicted with Elbert Davis on four counts of rape, counts one, two and three charging him with being a principal in the second degree in aiding and abetting three other named individuals, including the said Elbert Davis in the rape of a young Korean woman on the night of September 3, 1967, and the fourth count charging him with the offense of rape committed on the person of the aforesaid female by and with the aid of the other three named individuals including the said Elbert Davis. The defendant was separately tried and the jury returned a verdict finding him guilty without recommendation of mercy on all four counts. This case arose out of the same events as set forth in Jackson v. State, 225 Ga. 39, 165 S.E.2d 711 in which case the appeal of the brother of the defendant here was disposed of, and to which case reference may be had for a more complete statement of the facts, a repetition of which would serve no useful purpose. Only such additional facts as specifically relate to the questions raised in this case will be dealt with in this opinion.

Under the evidence adduced for the State, the jury was authorized to find that the defendant here, together with his co-indictee and two other Negroes, approached the automobile of the victim while the same was parked in Grant Park in the City of Atlanta, occupied by the victim and her male companion; that these four forcibly removed the victim and her male companion from the automobile, and while still in Grant Park all four of the individuals raped the victim while holding her companion at gunpoint nearby; that thereafter the four transported the victim and her companion in the victim's automobile to a vacant house on Pulliam Street where the additional rapes referred to in the aforesaid case were accomplished; that the defendant here on trial was among those present, aiding and abetting the multiple rapes there described; that he again perpetrated the crime of rape on the person of the victim at least once. The defendant here offered no evidence in defense of the charges against him, but merely made an unsworn statement to the jury in which he denied his presence in Grant Park, and in which he contended that he merely came to the house on Pulliam Street and at the invitation of another Negro male, entered therein and had intercourse with the victim without, insofar as he was concerned, exerting any force upon her, and that he thought that the act had been accomplished with the consent of the victim. The defendant was later identified by the victim and her companion from photographs shown to them by the police and the defendant was arrested at his place of employment. Upon his arrest certain articles of personalty belonging to the victim, including the keys to her automobile, were found in the possession of the defendant, and in addition thereto the full palm print of one of the defendant's hands was found on the automobile of the victim after the automobile was recovered from the street where it had been abandoned.

In his appeal to this court the defendant enumerates 28 grounds of alleged error. In his brief and argument before this court he has, however, abandoned grounds 11, 16, 17 and 26 of his grounds of enumerated error. A number of his grounds of enumerated error may be treated together, and we shall proceed to dispose of the grounds of alleged error not abandoned in the order in which they have been presented.

1. The first six grounds of alleged error all relate to the defendant's objection to the admission of evidence of out-of-court and in-court identification of the defendant by the victim and her male companion, on the ground that the pre-trial identification of the defendant by the eyewitnesses was accomplished at a time when the defendant did not have counsel and in such a manner as to amount to an unconstitutional violation of the defendant's privilege against self-incrimination, and that such prior identification of the defendant so tainted the ability of the eyewitnesses to make an unbiased identification of the defendant so as to render their in-court identification of him inadmissible. In both of his written statements which were properly admitted in evidence as hereinafter considered, the defendant admitted his presence at the two locations where the jury was authorized to find that the alleged rapes were committed, and in his unsworn statement to the jury the defendant admitted his presence at the vacant house on Pulliam Street on the occasion in question and that he had sexual intercourse with the woman alleged to have been raped. One witness (other than the victim and her male companion, whose testimony identifying the defendant is the subject of the first six grounds of enumerated error) testified without objection that the defendant was present at the vacant house on Pulliam Street on the occasion in question. In view of the admissions contained in the defendant's statements and the evidence above referred to, the only issue in the case was whether the act of sexual intercourse admitted by him was with the consent of the prosecuting witness or was accomplished forcibly and against her will and therefore rape. There was, therefore, no issue in the case as to the identity of the defendant, and these enumerations of error are without merit. Whippler v. State, 218 Ga. 198, 204, 126 S.E.2d 744; Smithey v. State, 219 Ga. 247(1), 132 S.E.2d 666; Salisbury v. State, 222 Ga. 549(2), 150 S.E.2d 819.

2. Enumerations of error numbers 7, 8 and 9 complain of the refusal of the court to allow counsel for the defendant to cross-examine three different witnesses with respect to particular matters. Counsel for the appellant, however, fails to point out in his brief and argument before this court where the court refused to permit him to ask and elicit answers from the witnesses as to any pertinent or relevant matter. While counsel for appellant has quoted in part 1 of his brief excerpts from the transcript which are apparently relevant to these three enumerations of error these quoted excerpts, when examined with reference to the entire testimony of the witnesses in question show that the questions which the court refused to permit the witnesses to answer were not calculated to elicit relevant testimony. These grounds of enumerated error show no cause for reversal. Pulliam v. State, 196 Ga. 782, 787, 28 S.E.2d 139; Smith v. State, 202 Ga. 851, 867, 45 S.E.2d 267; Rooker v. State, 211 Ga. 361(4), 86 S.E.2d 307.

3. In the tenth ground of enumerated error the defendant contends that the trial judge erred in admitting two written statements made by the defendant on the ground that the same were not properly authenticated. The persons to whom these statements were made testified with respect to the statements, as to their having been dictated to them by the defendant, as to their being typed up in the presence of the accused and given to him to be read by him; that when they were handed to him he stated that he could read, and that he read both statements, and as to one of them returned it to the typist with a correction to be made. These witnesses testified that they affixed their signatures to the statements as subscribing witnesses and that the defendant voluntarily signed the statements in their presence. This evidence sufficiently authenticated the statements so as to authorize their introduction in evidence.

4. Four grounds of enumerated error, numbered 12, 13, 14 and 15, complain generally of alleged harassment of counsel for the defendant by the trial judge in his refusal to permit counsel for the defendant to bring a tape recorder into the courtroom; in the action of the judge in enforcing his order refusing to permit cross-examination of...

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