Syllabus
by the Court.
1.
Where, in a trial for rape, two of the defendants defended
upon the ground that the prosecutrix gave her consent to the
sexual intercourse which the indictment alleged to be rape
and the third defendant, in support of the statements of his
codefendants, stated that the prosecutrix had consented to
have intercourse with him as far back as 1930, three years
prior to the date of the alleged crime, the court did not err
in admitting rebuttal testimony in support of the general
character of the prosecutrix for chastity.
2. No
reason why testimony should have been repelled was presented
by the mere statement of counsel, "I object to what his
wife said." This was too meager to present anything to
the court for decision.
3. The
court did not err in permitting a justice of the peace to
swear that he issued a warrant at the instance of the
prosecutrix for the arrest of the defendants on the same
night the offense was alleged to have been committed, over
the objection that the warrant would be the best evidence.
The testimony so admitted was competent and admissible in
corroboration of the testimony of the prosecutrix, as proof
of prompt complaint.
4. The
grant of a mistrial for improper argument of opposing counsel
is very important, and should be liberally exercised in all
cases where counsel abuse their right of argument by
prejudicing the case of the opposite party. However, it is
necessarily a matter largely within the discretion of the
court; and, unless it is apparent that a mistrial was
essential to the preservation of the right of a fair trial
the exercise of this discretion will not be interfered with.
5. The
court did not err in charging to the jury the law as to
conspiracy; for the circumstances of the case, as detailed in
the testimony, were sufficient to authorize the jury to infer
that there was at least a tacit agreement that the
prosecutrix should be compelled, if she would not consent
thereto, to have sexual intercourse with any one or as many
of the defendants as might desire it, by force and against
her will.
6. The
rule is invariable, that the court is not required to charge
the jury, in a criminal case, upon any principle of law
dependent entirely on the statement of the accused, unless
there be an appropriate timely request for such instruction
as might be desired. This principle is applicable to an
omission of the judge to instruct the jury upon the subject
of the general character of the prosecutrix for chastity. The
statements in this case, charging unchastity or lewdness
against the prosecutrix, came only from the defendants
themselves. No written request was presented for instruction
upon this theory.
7. An
exception to an instruction must be sufficiently definite to
apprise the court of the precise nature of the specific point
to which the allegation of error refers.
8. It
plainly appears from the record that neither action nor
omission to act, in the matter of giving the rules to govern
the jury in determining whether or not one or more of the
defendants were guilty of being a principal in the first or
second degree, would have worked the slightest injury to the
accused.
9. The
evidence authorized the verdict, and the court did not err in
overruling the motion for a new trial.
ATKINSON
J., dissenting in part.
Error
from Superior Court, Haralson County; J. R. Hutcheson, Judge.
Blake
Powell, alias Blake Kilgore, and others were convicted of
rape, and they bring error.
Judgment
affirmed.
The
prosecutrix testified that she and a girl friend got in a
one-seated Ford coupé with Laminack and Goodwin at
Tallapoosa, and they drove out to Ebenezer Church. "We
all went directly out to the church, and when we got to the
church I didn't get out of the car. Mildred and Shug got
out, and I stayed in the car awhile, and then I got out and
ran up to the church. What happened then Shug came back and
got me to come back. He took hold of me, he made me go back
then Tack left in the car; he went to town, I reckon
that's where he said he was going. * * * I imagine he was
gone about 20 or 30 minutes. * * * Blake Kilgore came back
with him. What they had when they came back over there was
whisky; * * * they drank it. I did not drink any; they tried
to get me to drink some; when I wouldn't drink they
poured it on top of my head. Up to that time none of the boys
had bothered me in any way; they hit me, but they didn't
bother me any other way. * * * What happened then after the
drinking, they all got drunk then did something to me, tried
to get me to have sexual intercourse with them. Tack tried
first. * * * They just tried to get me out of the car;
somebody got me out of the car. Shug got me out; pulled me
out; he done nothing then; he bit me. Somebody got me off
from the car just a short ways, not so far. How they got me
away from the car, pulled me, I was in the pine thicket.
Blake Kilgore was with me; he carried me out there; what
happened, well I don't hardly know. Blake had sexual
intercourse with me, pulled me down, taken off his clothes
then taken off my clothes, taken off my pants, * * * then got
on me. At that time I tried to get loose, screamed. Shug
Goodwin at that time was back up at the car. Tack Laminack at
that time was up there too; that was about sundown. He had
his male organ out; he did what he started to, I reckon.
During the time he was doing this I tried to get loose, I did
not at any time consent for him to do this. I tried to push
him away, tried to scream; that's all I could do. He hurt
my private parts some. These [presenting] are the clothes I
had on. Blake Kilgore took them off. After this matter was
over I did not put these panties back on. Other parties had
something to do with me then. Tack Laminack did right after
Blake right straight. I tried to get loose. I was screaming,
more so than the other time. I was bruised, some part of my
body bruised and my head and legs and arms and on my
forehead. * * * Somebody come down there where we were. I
didn't know at that time who it was. After the fellow
came down there he said something to them. I didn't
understand this, and they started with me to town then; they
brought me back to town. I got out twice on the way; they
told me to get back in, and there wasn't anything else
for me to do. I was scared. It was dark at that time. They
did make threats at the time they were having to do with me.
Well, they said they were going to beat me to death. Shug
said that. I was crying and screaming; then when I commenced
crying and screamed they tried to get me to hush. They said
they were going to beat me to death if I didn't hush. I
did not at any time, with either one of these boys, ever
consent at all for them to have to do with me. I had never
had intercourse with any other boy. * * * I had on this coat
at the time this occurred. It has been washed since. One of
the sleeves was torn out. * * * They were trying to hold me,
and I jerked trying to get loose and tore the sleeve out.
Shug and Tack had hold of me when they tore the sleeve out
that way before they had accomplished their purpose. * * *
Shug did not have sexual intercourse with me. Tack cursed me
and beat me and hit me in the head and kicked me. * * * He
told them if they couldn't he would, and he said he would
beat me to death if I didn't. If they couldn't do
something to me he could; he came out in the plain old
Anglo-Saxon words. * * * I screamed and tried to get loose
from them. I tried to get away and I would run and they would
catch me, tried to get them to turn me loose, and begged
them. When I would scream they would tell me to shut up. Shug
told me he would beat me to death if I didn't shut my
mouth. About the time the man came down there Tack was on me,
and I was screaming. He didn't say anything to me about
screaming; he was on me at that time. After one got off, the
other fellow got on straight; one got off and the other
pushed me down and got on again."
E. D.
Hicks testified that he lived about a quarter of a mile from
Ebenezer Church, and that after dark on or about the 4th of
April he "heard some unusual noise down around the
church." He took his gun and went up the road and
"found there were some folks up there in the edge of the
pine thicket or straw field, * * * and the woman was
screaming and taking on, and begging to be let alone; and I
went on up and found there were two parties when I got up
there; * * * all were strangers to me, and I told
them I was tired of the racket. They said to the girl that
was screaming, they were telling her to hush, they said,
'Hush up your racket; I am getting tired of this.' I
says, "Boys, I am getting tired of it too. I live right
out here.' He left then, * * * and one fellow says,
'You don't, do you, dad?' I says 'I certainly
do. I am getting tired of the racket, this woman screaming
that way; you get out of here and stop this racket,' and
one of the boys said, 'We can shoot as fast as you
can.' I says, 'I didn't come out here to do any
shooting but to stop this racket.' * * * One of the boys,
the one they called Tack, that's all the name I heard,
one fellow says, 'Tack, can't you do nothing with
her? If you can't I'll hold her and come down myself
and do it.' At that time she was begging him to quit,
'please don't.' * * * After something was said
about shooting the boys then left. * * * That was just about
dark."
Mrs.
Carrie Gamble, mother of the prosecutrix, testified that when
her daughter returned home about 7:30 of the night of the
alleged crime, "she told me this bad news when she came
to me. She reported to me what had happened."
Dr. W
B. Brock, a physician, testified: "I know Ruby Moncrief.
...
