Moose v. State

• Decision Date: 16 June 1916
• Docket Number: (No. 478.)
• Citation: 145 Ga. 361,89 S.E. 335
• Parties: MOOSE . v. STATE.
• Court: Georgia Supreme Court

89 S.E. 335

(145 Ga. 361)

MOOSE .

v.STATE.

(No. 478.)

Supreme Court of Georgia.

June 16, 1916.

(Syllabus by the Court.)

Evans, P. J., and Lumpkin J., dissenting.

Error from Superior Court, Decatur County; E. E. Cox, Judge.

J. F. Moose was convicted of rape, and brings error. Reversed.

R. L. Cox, of Monroe, and W. H. Krause, A. E. Thornton, and Hartsfield & Conger, all of Bainbridge, for plaintiff in error.

R. C. Bell, Sol. Gen., of Cairo, J. R. Wilson and W. M. Harrell, both of Bainbridge, F. A. Hooper, of Atlanta, Clifford Walker, Atty. Gen., and Mark Bolding, of Atlanta, for the State.

BECK, J. J. F. Moose was indicted for the offense of rape, and upon the trial the jury returned a verdict of guilty. The defendant made a motion for a new trial, which was overruled.

1. There is no merit in the grounds of the motion complaining of certain portions of the court's charge.

2. In another ground of the motion for a new trial the defendant excepts to a ruling of the court which permitted a sister of the girl alleged to have been assaulted, who was a witness for the state, to testify that the defendant had "threatened to take her [the witness'] life, " over the objection that this testimony was irrelevant and prejudicial. The accused was on trial for committing the offense of rape upon his own daughter, a child 14 years of age. She had testified that the crime was committed at night, after she had retired to bed with her sister, Ethel Moose, in a room different from that in which her father and mother slept. She further testified that her father came to the bed in which she was sleeping and waked her up. At first she pretended to be still asleep. Her younger sister, Ruth, was on the back side of the bed, and her elder sister, Ethel, on the front side. After waking the witness, the accused went out for a short while, and came back, and told her that she "might as well come on in there, " but an infant child in another room awoke and began to cry, and the witness arose and went behind the bed; but the accused again returned, and, finding her out of the bed, searched for her, and found her in a place of concealment, and told her that she had to come with him. This witness testified to further protest and a resistance made by her. When the elder sister, Ethel, was on the stand, she testified that she was awake and heard the colloquy between the father and the younger sister; she heard the protests of the latter and her pleadings with the father, but she herself made no outcry.

If the witness last mentioned had made the statement objected to in connection with her narration of the happenings at the time when the accused forced the younger daughter, Minnie, to go...