Larkins v. State, 27744

• Decision Date: 13 April 1973
• Docket Number: No. 27744,27744
• Citation: 230 Ga. 418,197 S.E.2d 367
• Parties: James Washington LARKINS v. The STATE.
• Court: Georgia Supreme Court

Page 367

197 S.E.2d 367

230 Ga. 418

James Washington LARKINS v. The STATE.

No. 27744.

Supreme Court of Georgia.

April 13, 1973.

Short & Fowler, Larkin M. Fowler, Jr., Moultrie, for appellant.

William O. Hitchcock, Dist. Atty., Valdosta, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, Thomas W. Greene, Asst. Attys. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

HAWES, Justice.

James Washington Larkins was convicted of rape and sentenced to life imprisonment. He appeals, enumerating 13 grounds of alleged error.

1. In ground 1 appellant contends that the court erred in allowing a witness for the state to testify after he had remained in the courtroom in violation of the rule of sequestration of witnesses which had been invoked by the defendant. Defendant's objection to this witness taking the stand at the time he was offered was overruled. Matters such as this are addressed to the sound discretion of the trial judge, and unless an abuse of that discretion is clearly shown the decision of the judge will not require a reversal of the case. Pippins v. State, 224 Ga. 462, 463, 162 S.E.2d 338; Fountain v. State, 228 Ga. 306(3), 185 S.E.2d 62; McNeal v. State, 228 Ga. 633, 636, 187 S.E.2d 271. In the instant case, the witness in question was listed on the indictment as one of the witnesses for the State. It is not contended by the appellant that he covertly remained in the courtroom without accused's or counsel's knowledge. It will, therefore, be presumed that they knew from the time of the commencement of the trial that the witness was in the courtroom, and, since he was listed on the indictment as one of the witnesses, the trial judge was authorized to conclude that the accused had no objection to the witness's presence in the courtroom in violation of the rule of sequestration or that he waived ay objection he may have had. Under these circumstances, it clearly was not an abuse of the trial judge's discretion in permitting the witness to testify over the objection of the accused which was not lodged until the witness was called to testify. Nothing in the case of McGruder v. State, 213 Ga. 259(9), 98 S.E.2d 564 requires a different result from that which we here reach.

2. In the second ground of enumerated error, appellant contends that the trial court erred in admitting over objection the testimony of a witness as to an alleged rape upon the witness by the defendant which occurred some seven months prior to the occurrence for which the accused was on trial. The accused had not been prosecuted for that act, the witness giving as her reason for failing to take out a warrant for the accused that she was afraid of him. Her testimony unequivocally identified the accused as the perpetrator of the rape on her, and showed that it occurred at the home of the witness which was in the neighborhood where both the accused and the victim of the crime here involved lived. One point of similarity between the two crimes was shown by the evidence. This point of similarity was that the victim in each case was approached from the rear and overpowered by the attacker, choking the victim with his hands. Otherwise, the two crimes were wholly unconnected. In the case on trial, the identity of the accused as the attacker was not in issue since the only defense which the accused injected by his unsworn statement was merely that he had sexual intercourse with the prosecuting witness by her consent.

'The general rule is that, on a prosecution for a particular crime, evidence which in any manner shows, or tends to show, that the accused has committed another crime wholly independent from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible; but to this rule there are several exceptions. Among them is the admissibility of evidence showing or tending to show the commission of crimes other than that for which the accused is on trial for the purpose of showing motive, plan, or scheme. Frank v. State, 141 Ga. 243, 80 S.E. 1016.' Williams v. State, 152 Ga. 498, 521, 110 S.E. 286, 296. The exceptions to the foregoing general rule all rest on the proposition that there must be 'some logical connection between the two (crimes), from which it can be said that proof of the one tends to establish the other.' Cawthon v. State, 119 Ga. 395, 408, 46 S.E. 897, 901. In the latter case, it was said (p. 409, 46 S.E. p. 901): 'In order to justify the admission of evidence relating to an independent crime committed by the accused, it is absolutely essential that there should be evidence establishing the fact that the independent crime was committed by the accused, and satisfactorily connecting that crime with the offense for which the accused is indicted. Even if the evidence establishes the commission by the accused of the independent offense, it is inadmissible until it be shown satisfactorily that that crime had some connection with the transaction then under investigation.' If the relevancy of the evidence relating to other crimes offered is so doubtful that the connection between them and the crime for which the accused is on trial cannot be clearly perceived, the trial court should give the benefit of the doubt to the accused instead of allowing the minds of the jurors to be prejudiced by an independent fact carrying with it no proper evidence of the particular guilt. Cawthon v. State, 119 Ga. 410, 46 S.E. 897, supra. While this court has recently recognized the existence of an exception to the general rule in rape cases (see Anderson v. State, 222 Ga. 561(3), 150 S.E.2d 638, and McNeal v. State, 228 Ga. 633, 636, 187 S.E.2d 271, supra, and cits.), this exception and the principle enunciated in those cases should never be applied where the connection between the two rapes is not clear and where some logical connection between the two from which it can be said that proof of the one tends to establish the other is not shown. Moose v. State, 145 Ga. 361(2), 89 S.E. 335; Cox v. State, 165 Ga. 145(2), 139 S.E. 861.

The evidence in this case did not relate, as did the evidence in Frank v. State, 141 Ga. 243, 255, 80 S.E. 1016, to conduct and language of the accused closely connected to the crime for which he was on trial. It, therefore, formed no part of the res gestae. Neither was it a part of a system of mutually dependent crimes; nor did it constitute evidence of guilty knowledge or, as we have already said, bear upon the question of the identity of the accused or of articles connected with the offense. It was not evidence of a prior attempt by the accused to commit the same offense upon the victim of the crime for which he stood charged. This evidence was not admissible to prove malice, intent, motive or the like since in the crime of rape if such elements are present they are inherently so. Evidence of other crimes to prove malice, intent and motive is admissible only where the act of which the accused stands charged would be legal in the absence of those elements. The only real issue which the jury had to decide after the accused admitted the act of sexual intercourse was whether it was with or without the consent of the prosecutrix. In either event, malice, intent and motive were not relevant. See Farmer v. State, 100 Ga. 41, 28 S.E. 26; Cawthon v. State, 119 Ga. 410, 46 S.E. 897, supra. The admission of the evidence of previous rape was harmful error to the accused and because of its illegal admission over his timely objection, conviction and sentence must be reversed.

3. The third ground of enumerated error complains because...