Parker v. State
| Decision Date | 20 December 1907 |
| Docket Number | 844. |
| Citation | 59 S.E. 823,3 Ga.App. 336 |
| Parties | PARKER v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
In a case of assault with intent to rape, the jury would be authorized to convict on the uncorroborated testimony of the injured female. In the case sub judice, there were "concurrent circumstances" and facts of corroboration, and the verdict was fully warranted by the evidence.
[Ed Note.-For cases in point, see Cent. Dig. vol. 42, Rape, §§ 83, 84.]
A judgment of the trial court refusing a continuance will not be reversed, unless it is manifest that such judgment was an abuse of sound legal discretion. No abuse of such discretion appears in the present case.
[Ed Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 3045-3049.]
New trials on the ground of newly discovered evidence are not favored by the courts, and should not be granted, unless it appears that the testimony alleged to be newly discovered could not have been secured at the trial by the exercise of reasonable diligence, and that its introduction would probably change the result on a second trial. The motion on this ground in the present case lacks the two essentials indicated.
[Ed Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2318, 2336.]
There is no merit in the exceptions to the charge of the court on the subject of reasonable doubt and the impeachment of witnesses.
Error from Superior Court, Walton County; C. H. Brand, Judge.
Offie Parker was convicted of crime, and brings error. Affirmed.
A. C. Stone and A. E. Hawkins, for plaintiff in error.
I. J. Tribble, Sol. Gen., for the State.
Offie Parker, a white boy 16 years old, was convicted of the crime of assault with intent to commit rape on the person of a little white girl named May Johnson, 10 years of age. He made a motion for a new trial based on the general grounds and on several special assignments of error. This being denied, he brings the case to this court.
1. As to the three general grounds of the motion, it may be stated that the verdict of the jury was amply supported by the evidence. The little girl testified that, while she was on her way to school between 7 and 8 o'clock in the morning the defendant suddenly jumped out of the bushes, grabbed, and dragged her to "a little spot of pines," where he forcibly and against her will made the felonious assault. Her testimony fully establishes the commission of the offense, and she is corroborated by facts and circumstances testified to by other witnesses. Some of these circumstances and facts of corroboration are as follows: (1) She was seen by several witnesses on the road to school near the place where she said the offense took place and about the time she said it took place. During recess, a few hours after the commission of the offense, she made complaint to a schoolmate, exhibiting to this schoolmate her drawers, which were torn and ripped, and stating to her that they were so torn and ripped by her assailant at the time of the assault. The schoolmate testified that the complaint was so made, and also testified as to the said condition of the drawers. She further made complaint the same afternoon, so she states, to her mother and stepfather when she went home from school, and the next morning, in company with her stepfather and several of the neighbors, she went to the place where she said the crime had been committed and pointed out the place to them, and these witnesses testified that there were physical marks on the ground indicating a recent scuffle or struggle. Three witnesses-two boys on their way to school and a white woman-testified that they saw the defendant near the place and about the time of the commission of the crime as stated by the girl in her evidence. These facts and circumstances of corroboration were testified to by witnesses who were not related to the girl nor connected with the prosecution in any way. The trial judge instructed the jury that they could not convict on the uncorroborated testimony of the party assaulted, following the decision of the Supreme Court in the case of Davis v. State, 120 Ga. 435, 48 S.E. 180. That was a case of rape, and the majority of the court held that there could not be a lawful conviction of the offense of rape on the testimony of the woman alone, unless there were some "concurrent circumstances" which tended to corroborate her evidence. This court, however, held in the case of Fields v. State, 2 Ga.App. 41, 58 S.E. 327, that in a case of assault with intent to rape the jury was authorized to convict on the uncorroborated testimony of the injured female, and that the ruling of the Supreme Court, supra, did not apply, in a case of assault to commit rape, for the reasons stated in the opinion. If, therefore, the jury in this case believed the testimony of the little girl, no other evidence was necessary to support the conviction; but the record discloses "concurrent circumstances" and facts testified to by apparently disinterested witnesses, strongly corroborating her statement. The trial judge having charged the law more favorably to the accused than he was entitled to, and the question of fact being entirely for the jury, and the verdict having been approved by the trial judge, this court, even if it had the right to do so, would not be warranted in setting aside the verdict, unless in the trial of the case some material error of law, prejudicial to the rights of the defendant, was committed.
2. When the case was called for trial, a motion for continuance was made on the ground that the brother of the defendant, who was a material witness in his behalf, was absent from the court. Alibi was the defense relied upon, and the defendant claimed that he could show by this absent witness that on the morning of the alleged offense he was present with him some distance from the scene of the offense "from the time they got up that morning at daybreak until after dinner time"; that they helped their mother about some household affairs until about 8 o'clock or a little thereafter, when he and his brother went to the pasture together for the purpose of separating the cow and calf, and that after t...
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