Moore v. State
| Decision Date | 18 June 1921 |
| Docket Number | 2286. |
| Citation | 108 S.E. 47,151 Ga. 648 |
| Parties | MOORE v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where on the trial of one accused of rape, it is made to appear to the court that the female alleged to have been raped, on account of her youth and highly nervous condition, is unable to give her testimony before a crowd of spectators, and that the due administration of justice is thereby impeded, the trial judge may clear the courtroom, during the examination of the female, of all persons except court officials, the jurors on the panel, the defendant, his counsel, his father brother, and two sisters, the prosecutrix, her counsel relatives of the prosecutrix, disinterested members of the bar, and representatives of the press, without infringing upon defendant's right to a public trial, as guaranteed by article 1, § 1, par. 5, of the Constitution of this state, or without violating the defendant's right to due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States.
(a) Civ. Code 1910, § 5885, which provides, "During the trials in the superior courts, and all other courts and trials occurring in this state, of any case of seduction or divorce, or other case where the evidence is vulgar and obscene, or relates to the improper acts of the sexes, and tends to debauch the morals of the young, the presiding judge shall have the right, in his discretion and on his own motion, or on motion of plaintiffs or defendants or their attorneys, to hear and try the said case after clearing the courtroom of all or any portion of the audience," as construed and applied by the trial judge in the case at bar, is not violative of article 1, § 1, par. 5, of the Constitution of this state, which declares that "every person charged with an offense against the laws of this state * * * shall have a public * * * trial."
(b) The provision of the fifth amendment to the Constitution of the United States, which declares that "No person shall be deprived of life, liberty, or property, without due process of law," and the provision of the Sixth Amendment to that Constitution, which declares that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed," etc., refer to powers exercised by the government of the United States, and not to those of the individual states.
The objection to the evidence of the female alleged to have been raped, that she did not indirectly consent to sexual intercourse, the objection being that the witness cannot draw a conclusion without stating the facts upon which the same is based, is without merit, where it appears that the witness had already stated the facts fully upon which her statement was based.
More elaborate instructions, if desired, on the question of consent, should have been specifically requested, in view of the general charge and the defendant's contention that he did not have carnal knowledge of the female alleged to have been raped, either with or without her consent.
After the defendant has made his statement and rested his case, the admission of evidence not in rebuttal of defendant's statement is a matter in the sound discretion of the court.
(a) The evidence examined, and held to be in rebuttal of the defendant's statement.
Where a charge of an offense of graver character includes (without additional averment) a minor offense, it is the duty of the trial judge to instruct the jury upon the law applicable to the lesser offense, where the evidence under any view thereof will authorize a conviction of the lesser offense. Where, however, the evidence, if credible, proves the completed offense as charged in the indictment, the failure of the judge, without appropriate request, to instruct the jury upon the law applicable to the lesser offense, is not cause for new trial, though the jury would have been authorized to convict of the lesser offense in view of the defendant's statement.
(a) The evidence examined, and held to prove, if credible, the offense of rape as charged in the indictment, and sufficient, in connection with other evidence in the record, to support the verdict.
Error from Superior Court, Glynn County; J. I. Summerall, Judge.
Bill Moore was convicted of rape, and he brings error. Affirmed.
Isaac & Isaac, of Brunswick, Jas. R. Thomas, of Jesup, and Wilson & Bennett, of Waycross, for plaintiff in error.
Alvin V. Sellers, Sol. Gen., of Baxley, R. A. Denny, Atty. Gen., Graham Wright, Asst. Atty Gen., and F. M. Scarlett, Jr., and J. T. Colson, both of Brunswick, for the State.
The defendant was indicted for the offense of rape at the May term, 1920, of Glynn superior court. He was put upon his trial on July 21, 1920, at the May adjourned term, and the jury returned a verdict finding him guilty of the offense of rape, with a recommendation to mercy, fixing the penalty at from 10 to 20 years in the penitentiary. The defendant filed a motion for new trial, which was overruled, and he excepted.
The female alleged to have been raped did not formally appear as prosecutrix, but for convenience she will be so referred to. The prosecutrix was 16 years of age on January 27, 1920, before the commission of the alleged crime on March 31, 1920. She was about 5 feet in height and weighed only 100 pounds. For some time she had been employed as cashier in a retail drug store, and was usually on duty until 10 o'clock in the evenings. She had met the defendant at the home of a friend, a few days before the night of March 31, 1920. The conduct of the defendant on this occasion was entirely proper. On a few occasions thereafter he spoke to her pleasantly in the drug store. On the night of March 31, 1920, he drove his automobile to the drug store and asked the prosecutrix if he might drive her home. She accepted the invitation, and at ten o'clock he returned for her. Instead of driving directly to prosecutrix's home, the defendant took her around what is known as "the Boulevard." On the drive he requested her to remove her gloves, and she removed the glove from the hand nearer the defendant. He attempted to hold her hand and she objected. At a point on the roadway he stopped the automobile, threw his arms around the prosecutrix, and, according to her testimony, had sexual intercourse with her, forcibly and against her will. The defendant then drove the prosecutrix to her home. They reached home about 15 minutes to 11 o'clock. Prosecutrix's mother met her at the door and asked where she had been. She replied that she did not know, and the defendant made a like reply. The prosecutrix said to her mother, "Mother, this is Mr. Moore," calling the defendant by his name, but not intending (as prosecutrix contended) to introduce the defendant. He shook hands with the mother and bade the prosecutrix good-bye with the statement that he would see her the next day. Just as the mother closed the door, the prosecutrix said to her, "Mother, he has ruined me." The prosecutrix's father was not at the time at home, although she had stated to the defendant that her father was at home, and that if she told him what had happened he would kill the defendant. Her father returned home at 11 o'clock, and the family physician was immediately called to administer to the prosecutrix. The physician testified that he saw the prosecutrix within an hour or two after the commission of the alleged offense, and that he found an abrasion on her knee, a torn or ruptured hymen, oozing of blood, bruised mucous membrane, and that there was blood and a starchy fluid having the appearance of semen on her underclothes. The blood upon the prosecutrix's clothes was not caused by menstrual discharges, according to the testimony of the physician, the prosecutrix, and the mother. The defendant rested his case upon his statement. He said that he took prosecutrix to ride; that she put her arm around him in the car; that he kissed her and pinched her thigh without objection from her; and that he suggested sexual intercourse, but that she stated to him that if she should consent he would not speak to her again. Whereupon, according to the defendant's statement, he replied that if she believed him to be that kind of a man he would take her home. He denied having sexual intercourse with the prosecutrix either with or against her consent. He also stated that when she reached home she formally introduced him to the mother, and that he engaged in conversation with the mother and the prosecutrix, finally bidding the prosecutrix goodbye with the statement that he would see her the following morning, and that he did in fact drive by her home early the next morning, and saw and spoke to her. The foregoing are the main facts in the case; but the evidence of the prosecutrix relating to the conduct of the defendant at the time of the alleged assault upon her, and the nature, character, and extent of the assault and injury to her person, will be set out more at length in the consideration of the special assignments of error.
1. After the jury was impaneled, special counsel for the prosecution moved that the courtroom be cleared of all parties except officers of court, bailiffs, constables, and parties directly interested, at least during the taking of the testimony of the prosecutrix and possibly of her mother. In making the motion counsel stated:
"We are making this request due to the extreme youth of this young woman, and our information both from her people and physicians as to her extremely nervous state; and we deem it almost essential, in order that she may go through this investigation, that the public be excused."
To this motion cou...
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