Paige v. State

• Decision Date: 10 January 1964
• Docket Number: No. 22143,22143
• Citation: 134 S.E.2d 793,219 Ga. 569
• Parties: Frank PAIGE v. The STATE.
• Court: Georgia Supreme Court

Page 793

134 S.E.2d 793

219 Ga. 569

Frank PAIGE v. The STATE.

No. 22143.

Supreme Court of Georgia.

Jan. 10, 1964.

Rehearing Denied Jan. 22, 1964.

Syllabus by the Court

1. The grounds of the motion for a new trial based upon the alleged insufficiency of the evidence to support the verdict do not show error, since the verdict is fully supported by the evidence.

2. The evidence shows that the crime was committed by force. Under the facts of this case the female child was legally incapable of consenting to the act of sexual intercourse.

3 The defendant was not deprived of any constitutional right in the manner of his arrest.

4. Where there is direct evidence of the defendant's guilt, it is not error for the court to omit any charge upon circumstantial evidence.

Welborn B. Davis, Jr., Willis G. Haugen, Newnan, for plaintiff in error.

Wright Lipford, Sol. Gen., Newnan, Eugene Cook, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., Atlanta, for defendant in error.

HEAD, Presiding Justice.

Frank Paige was indicted and convicted on a charge of rape, and sentenced to be electrocuted. His motion for a new trial as amended was denied and the exception is to this judgment.

1. Amended ground 7 is an elaboration of the general grounds and is based upon the contention that the evidence failed to support the verdict. As to the general grounds and amended ground 7, the State's evidence shows, briefly, that: The defendant unlawfully entered the home where the victim was asleep in the early morning hours of March 14, 1962. He removed his shoes at the door, went down the hall, entered the bedroom of the victim, a young girl 12 years of age, and choked her into unconsciousness. Her mother, asleep in an adjoining bedroom, heard her daughter moan, got up and went into her daughter's bedroom, turned on the light, and found the defendant on the bed on top of her daughter. The mother seized the defendant, pulled him off of her daughter, screamed, and struggled with the defendant. The defendant broke loose, and started down the hall. The defendant met the father in the hall, turned into a room occupied by another child, and finding himself in a room with the father blocking his exit by the door, jumped through a small window, knocking out the screen and the window sash in its entirety, and escaped. While neither the mother nor the father knew the defendant, both had opportunity to see him in the light, and both identified him positively at the trial as the perpetrator of the crime. The doctor who examined the victim soon after the attack testified to facts indicating that someone had had sexual intercourse with her.

Counsel for the defendant strongly insist that while the victim was choked into unconsciousness, it was not shown that she did not consent before she lost consciousness. The victim testified that she struggled with her attacker before losing consciousness. The State's evidence amply supports the allegation in the indictment that the intercourse was accomplished 'forcibly and against her will.' The undisputed evidence, however, shows that the victim was 12 years of age at the time of the assault upon her by the defendant. In this State a female under the facts of this case is legally incapable of consenting to sexual intercourse, and this is true even though the indictment makes no allegation as to age. Echols v. State, 153 Ga. 857, 113 S.E. 170; Wright v. State, 184 Ga. 62, 190 S.E. 663.

2. Ground 1 of the amended motion for a new trial assigns error on the refusal of the court to declare a mistrial. In response to a question by the solicitor general with reference to an alleged statement made by the defendant to the sheriff, the sheriff replied, 'He stated this: that on the night of the 13th, he went to Rocky Hill and got some liquor, drank a half a pint and put another pint in a coffee jar.' Whereupon counsel for the defendant stated: 'Now, your Honor, we move for a mistrial on the basis that this was an independent crime and was not connected with this and it's inadmissible missible and prejudicial to the defendant.' Under other testimony of Sheriff Potts it appears that the purchase of the liquor and its consumption by the defendant was prior to the alleged crime and that the coffee jar was found just outside the house where the crime of rape was alleged to have been committed, with a 'lease bit of whiskey in it.' It further appears that this jar did not have on it any Georgia revenue stamps indication payment of tax.

Neither the State's evidence, nor the defendant's alleged account of his acts to Sheriff Potts, is sufficient to show a wholly independent crime unrelated to the crime of rape. However, where the language of an incriminating statement or confession made by the...