Melton v. State

• Decision Date: 16 April 1937
• Docket Number: 11714.
• Citation: 191 S.E. 91,184 Ga. 343
• Parties: MELTON v. STATE.
• Court: Georgia Supreme Court

191 S.E. 91

184 Ga. 343

MELTON v. STATE.

No. 11714.

Supreme Court of Georgia

April 16, 1937

Error from Superior Court, Muscogee County; C. F. McLaughlin Judge.

Eli Melton was convicted of rape, and he brings error.

Affirmed.

Syllabus by the Court.

1. Evidence relating to crimes other than the one for which the defendant is being tried may be admitted to show plan, and to identify the defendant as the perpetrator of the crime of which he is charged.

2. The court did not err, as against the defendant, in charing the jury as follows: 'If you believe that the crime was committed as charged in the bill of indictment, but you do not believe this defendant was present at the time and place of such offense, you should acquit the defendant.'

3. Nor did the court err in charging the jury as follows: 'If she consents, it is not rape; butif her consent is obtained or rather, if she did not exert force owing to the fact of threats of violence or bodily harm, and she was in fear of her life, or in fear of bodily harm, and the defendant obtained and had sexual intercourse in that manner, then that would not be consent, but the law says it would be rape.' It is not the law, as the plaintiff in error contends, that 'the only fear known to the law in a case of this kind would not simply be a fear of bodily harm, but would be a fear of [an assault] amounting to a felony, and that simply a fear of bodily harm would not make the offense committed, if any, the offense of rape.' For if the female did not consent to sexual intercourse, yet did not resist because of fear of bodily harm aroused by threats, and sexual intercourse was obtained in that manner, the crime of rape would be committed. See Code, § 26-1301.

Geo. P Munro, of Columbus, for plaintiff in error.

Hubert Calhoun, Sol. Gen., and A. J. Perryman, both of Columbus, M J. Yeomans, Atty. Gen., B. D. Murphy, Asst. Atty. Gen., and E. J. Clower, of Atlanta, for the State.

BECK, Presiding Justice.

Eli Melton was convicted on an indictment charging him with the offense of rape upon the person of Miss Wiletta Carlisle on February 13, 1936. The jury did not recommend mercy. The defendant made a motion for a new trial on the general grounds, and on four special grounds. The motion was overruled, and the defendant excepted. The evidence for the State showed substantially the following facts: On February 13, 1936, Miss Carlisle and a young man to whom she was engaged to be married, named James F. Etheridge, were together in Etheridge's car and rode out to the city waterworks of Columbus. They had just parked the car and were preparing to get out of the car and get some water, when a man, armed with a pistol, walked up to the car and ordered them to get out. This man was identified on the trial by both Etheridge and Miss Carlisle as Eli Melton. Keeping them covered with his pistol, Melton forced Etheridge to get in the car and drive, stating that he was going to take them to the police station. Instead of taking the road leading back into Columbus and to the police station, Melton ordered Etheridge to turn off on a side road; and after driving several miles into the country he made Etheridge and Miss Carlisle get out of the car, walk ahead of him over some rough country and into the woods, and then, while he kept his gun pointed at Etheridge, whom he ordered to place his arms upon the limb of a tree and keep them there, Melton forced Miss Carlisle to lie down, and he threatened to kill her if she did not submit to him. Miss Carlisle struggled with Melton; but, he being a powerful man and having threatened to kill her with the pistol, she was compelled, through fear and physical force, to lie down, and the defendant committed the offense of rape upon her. After he completed this act, he instructed Miss Carlisle not to tell Etheridge what had happened, stating that if she did he would kill her. On the following day she was examined by Dr. W. P. Jordon, who found that her hymen had not been ruptured, but that she had three distinct bruises on the outside of the hymen, on the inside of the vagina. This doctor testified: 'There has been a penetration about a half an inch.'

Two police officers, W. C. Webster and H. J. Willis, were permitted to testify over the objection of counsel for the defendant that such testimony was prejudicial, irrelevant, and immaterial, in that it related to a separate and distinct charge. Webster testified that he and another police officer named Davidson, in company with two young ladies, were seated in a Ford sedan near the waterworks on the night after the crime here charged, when a person answering the description which had been given them by Etheridge walked up to the car and asked Davidson for a match. Davidson was sitting in the front seat, and Webster was in the back seat. Neither of the officers had on their uniforms. After Davidson told the man (whom the witness identified on the trial as the defendant Melton) that he did not have a match, Melton walked back and asked Webster for one. Webster asked the defendant what his name was, and he made no reply, but stepped back from the left side of the car about two or three paces and pulled a gun out of his rear pocket. Webster had his gun already drawn, and when Melton pulled his gun Webster shot him in the face, and Melton ran off into the woods, Webster shooting after him four more times. H. J. Willis, of the county police force, testified that on that night he and the chief of police, Satterfield, stationed themselves near the waterworks. They heard some shooting; and, when they went to the place, Webster told them what had occurred, and that he had shot a man. Willis, with the other officer, took a stand to look out for the man described by Webster. When somebody's automobile flashed a light, the witness saw the shadow of a man. He shot, and the man jumped behind a tree. Witness shot again, and the man threw up his hands and said, 'I give up.' It turned out to be the defendant, Melton, who was shot on the cheek.

The defendant set up the defense of alibi, and produced several witnesses, most of whom were members of his family, who testified to the effect that, about the time the crime here charged was alleged to have been committed, he was at...