Lewis v. State

• Decision Date: 27 November 1923
• Docket Number: 3818.
• Citation: 120 S.E. 124,156 Ga. 862
• Parties: LEWIS v. STATE.
• Court: Georgia Supreme Court

120 S.E. 124

156 Ga. 862

LEWIS v. STATE.

No. 3818.

Supreme Court of Georgia

November 27, 1923

Syllabus by the Court.

The charge being rape, and the evidence, if credible, showing conclusively that the carnal connection was complete, and that the offense of rape was actually perpetrated, the court did not err in failing to charge the law applicable to assault with intent to commit rape, or assault and battery or a mere assault. Kelsey v. State, 62 Ga. 558; Johnson v. State, 73 Ga. 107 (2); Harris v State, 101 Ga. 530, 29 S.E. 423; Welborn v State, 116 Ga. 522, 42 S.E. 773; Canida v. State, 130 Ga. 15 (1), 60 S.E. 104; Moore v. State, 151 Ga. 648, 108 S.E. 47.

The evidence of the female alleged to have been raped shows that carnal knowledge of her by the defendant was complete, and was sufficient to have authorized the jury to find that she had been actually raped by the defendant, but did not authorize a finding of a mere assault with intent to commit rape, or a mere assault and battery, or a mere assault. The other evidence introduced on the trial would not have authorized the jury to find that he did not have complete carnal knowledge of the female. It corroborates, and does not contradict, the testimony of the female that such carnal knowledge was complete. For this reason the court did not err in failing to charge the law applicable to any of the above lesser offenses.

The charge: "Now, gentlemen, I charge you this principle of law: The accused could not be convicted upon the woman's testimony alone, however positive it may be, unless corroborated by circumstances"--was not error, as contended, on the grounds that it "is inaccurate and misleading; it fails to refer to the testimony of the one assaulted; it fails to explain what circumstances are referred to, and does not explain what circumstances, facts, testimony, or evidence will be sufficient corroboration of the facts and evidence given by the one assaulted; that such reference to the 'woman's testimony' is confusing and misleading, because several witnesses who testified for the state were women; and because it does not charge the correct rule of law that the defendant cannot be convicted of rape upon the testimony of the person assaulted alone, unless her testimony is corroborated by other evidence."

There is sufficient evidence to support the verdict.

Error from Superior Court, Muscogee County; Geo. P. Munro, Judge.

A. L. Lewis was convicted of rape, and he brings error. Affirmed.

Atkinson J., dissenting.

An indictment for the offense of rape charged that A. L. Lewis, on a stated day, in Muscogee county, "did then and there, unlawfully and with force and arms, have carnal knowledge of Mattie Mae Lewis, a female, forcibly and against her will, contrary to the laws," etc. The jury returned a verdict finding the defendant guilty and recommending him to the mercy of the court. The defendant made a motion for a new trial, which being overruled, he excepted. A substantial statement of the evidence follows:

The defendant and his family moved from another county to Muscogee county. The defendant and his daughter Mattie Mae, the alleged injured female, went in advance of the other members of the family, and became mill employees working at different mills. After arrival in the county, they boarded for a while at one place and then at another. At the latter place they occupied a room, in which were two beds. Finally a place of abode was obtained in Bibb City, a village in the county of Muscogee, and they were joined by the other members of the family. The place of abode was one side of a small building, separated from the other side by a partition. The other side of the house was occupied by J. Thomas and his family. Mattie Mae Lewis testified on direct examination that she was 17 years of age, and substantially as follows:

She was sleeping in a bed with with her sister Laura, 16 years of age, in a room adjoining the room of her mother. Her sister Lois, 12 years of age, and other children, were sleeping in a different bed in the same room. About 2 o'clock in the morning the defendant came in his night clothes to witness' bed and had intercourse with her. When he started to leave, witness started to get up, and he returned, and knocked a slat out of the bed, and slapped witness, because she had waked one of the children by "holloaing to get them to go with" her to wash her nose, that was bleeding on account of having been slapped by the defendant. While the intercourse was going on, the defendant had his knife in his right hand down by witness' side, and after the intercourse he drew his knife on witness and threatened to kill her if she told anybody. She did not holloa, because she was afraid. After the intercourse the defendant remained in the room and "made us get up," and the rest of the night laid in a chair before a fire with his head in witness' lap and his feet in the lap of witness' sister Laura. "The intercourse was without my consent. I permitted him to have intercourse with me because I didn't want no such as that going on. I did not want to be that kind of a girl; that was why. I allowed him to have intercourse, because I could not help myself. He did not say anything when he first came to the bed. No threats were made to me until he was done in my bed. The threats were made to me after he had done had intercourse with me. During that time Mamma told him, 'Amos, I thought you had stopped that,' and he told her to shut her damn mouth, or something like that. * * * That was not the first time he had intercourse with me; when he was boarding with Mrs. Clark's right yonder, he made me sleep in the room with him every night; he made me stay in the room Sundays and all the time, right with him. * * * At the time the intercourse took place in my house at Bibb City, I made an effort to get up, but it didn't do any good. I didn't get up; I could not help myself; he held me there on the bed. He had a knife; I saw it. I felt it, just as he laid it down on the side of my throat. That was just as he finished the intercourse, if you want to know. I had made [an] effort to get up before that time. Every time he would start such as that, I would try to get up, and he would not let me. I have not been with any other man since I have been in Muscogee county. I haven't been with a boy. I am 17 years old, and I have never been with a boy. I have been living in Columbus about 5 weeks--about 7 weeks. We come here first last year in 1921. Stayed at Mrs. Collins. I see Mrs. Collins here to-day. I stayed in Mrs. Collins' room. I stayed with her, but he would carry me off at night, and keep me out until after dark, and everything, and I told him I was going to tell on him, and everything like that, and he just beat me around, and he said it wouldn't do any good to tell on him--that wouldn't nobody do nothing to him. It was Thursday night that this occurred. I reported it Friday morning to Mr. Parker, and Mr. Parker reported it to Mr. Kiser. I told Mr. Kiser myself; that was on Friday; the Friday morning following I reported it to him; the Friday morning, and then that Friday afternoon they arrested him."

On cross-examination witness testified:

"Yes, sir; he threatened, if I told it, he would cut my throat. He said that between the beginning and the ending; that was the way it was. This had been going on for some time, every since I was 15 years old. * * * I reported his conduct up here to Mrs. Jones, and she told her husband, and Mr. Jones told Mr. Hartz. When Mr. Kiser came to me, I told him all about it. I told Mr. Hartz about it, my boss, first, and he went up there and told Mr. Kiser about me being up there crying. I told him that morning, and he got Mr. Kiser and told me to recite it to him. I did not tell my mother about this last occasion, not until [I] had had him arrested. I had him arrested without telling my mother. I told my sister Laura and Lois. I told Lois there that night at home that he would not get a chance to do me that way any other night. I told Lois and Laura. My father was in the front room then, waiting for me to come back, where I had been washing my nose. I turned on the light after I went to wash my nose. My mother at the time was sleeping in the adjoining room in the bed. I did not tell her about it at all. I started to make an outcry about it, and he drawed his knife, and said he would cut my throat if I holloaed. That wasn't after it was all over with any such thing. I did not tell Mrs. Thomas; they heard it. They heard the racket in there. Knocking chairs around, and us getting up so early in the night, and setting up, I reckon. They didn't come around to see anything about it; they didn't tell me anything about it. * * * This trouble has been going on with my father since I was 15 years old, and this is the first time I reported it, because he would not let me go anywhere, only when he was right with me. I told my mother about it last year. I didn't tell her exactly; she partly caught up with me with it, and she thought he had stopped such as that, and he moved up and went up to Macon and he kept me up there, and he come back and went home and raised a fuss, and he brought me to Columbus, and I reported it. I don't know that he used a rubber. I don't know what he used. Well, I tell you the fact about it; he left me nasty, of course. I never become pregnant. This has been going on for about three years."

On redirect examination the witness testified:

"I was lying in the bed when my father came, on my side, and he came and pulled me over on my back, and I tried to get up, and he wouldn't let me. I just tried to get up, and when I did he put his arms around me, and drawed a knife on me, and said, if I got up or holloaed, he would kill me.

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