Rider v. State

• Decision Date: 13 April 1943
• Docket Number: 14447.
• Citation: 25 S.E.2d 304,195 Ga. 656
• Parties: RIDER v. STATE.
• Court: Georgia Supreme Court

25 S.E.2d 304

195 Ga. 656

RIDER v. STATE.

No. 14447.

Supreme Court of Georgia

April 13, 1943

Syllabus by the Court.

1. In this trial on a indictment for rape, the court did not err in failing to charge the law of assault with intent to rape, since, under the evidence, the defendant, if guilty, was guilty of the completed major offense.

2. The evidence for the State authorized the instruction correctly given, that the element of force required in rape may consist in threats of serious bodily harm sufficient to overpower the will of the female, as well as in actual physical violence.

3. The charge that any previous unchastity of the female would constitute no defense to the offense of rape was not erroneous.

4. It was not error to admit testimony by the husband of the prosecutrix as to the scratched condition of her feet and legs and her torn dress, after the alleged crime, in corroboration of her testimony.

5. The court did not err in refusing to declare a mistrial, on the ground that the State had injected a racial issue in the case, by introducing testimony from the prosecutrix as to the race of a named person, who the State contended had been left by the defendant to prevent the prosecutrix from leaving the scene of the alleged crime. Especially is this true since the defendant himself, in cross-examination of the same witness and in his statement to the jury, showed the race of this person.

6. It was reversible error to charge the jury in the absence of the defendant, without any consent or waiver thereof by him or his counsel as to the right of the jury to recommend whether the defendant should or should not be pardoned. This ruling renders it unnecessary to determine other questions which are involved for the reason assigned in the opinion.

Pat Haralson and Ben Carr, both of Blairsville, and E. C Brannon, of Gainesville, for plaintiff in error.

G. Fred Kelley, Sol. Gen., of Gainesville, and T. Grady Head, Atty. Gen., and A. J. Hartley, Asst. Atty. Gen., for defendant in error.

JENKINS Justice.

1. 'No person shall be convicted of an assault with intent to commit a crime * * * when it shall appear that the crime intended, or the offense attempted, was actually perpetrated by such person at the time of such assault, or in pursuance of such attempt.' Code, § 27-2508. Although a conviction of assault with intent to rape, under § 26-1404, may be had on an indictment for rape where the act was attempted but not completed, Johnson v. State, 14 Ga. 55(1), 59; Stephen v. State, 11 Ga. 225(7); Holland v. State, 161 Ga. 492, 131 S.E. 503; Harris v. State, 21 Ga.App. 75(1), 94 S.E. 75; and the jury should in all such cases be instructed that the defendant may be found guilty of the lesser offense necessarily involved in the graver offense, if under any view of the evidence submitted a conviction of the lesser offense would be authorized (Moore v. State, 151 Ga. 648(5), 662, 108 S.E. 47; Sutton v. State, 123 Ga. 125, 127, 51 S.E. 316); yet if all of the evidence shows that the defendant, if guilty at all, was guilty of the completed major offense, it is not error to fail to charge as to the lesser offense. Lewis v. State, 156 Ga. 862(1), 863, 120 S.E. 124, and cit.; Welborn v. State, 116 Ga. 522(2), 524, 42 S.E. 773; Whitley v. State, 188 Ga. 177, 178(2), 3 S.E.2d 588. Accordingly, under the evidence in this case, showing that if the defendant was guilty he was guilty of the completed major offense, it was not error to fail to charge the law as to an assault with intent to rape.

2. The element of force required to constitute the crime of rape (Code, § 26-1301) is not limited to physical violence, but also may consist of threats of serious bodily harm which overpower the female and cause her to yield against her will. Byrd v. State, 187 Ga. 328(6), 337, 200 S.E. 671; Vanderford v. State, 126 Ga. 753(5), 759, 55 S.E. 1025, and cit.; Berry v. State, 185 Ga. 334(2), 195 S.E. 172. Under the State's evidence that the prosecutrix submitted to the defendant because of his display of a pistol and threats to shoot her, the court did not err in charging this principle to the jury, and that intercourse under such circumstances would be rape, whether or not the female offered physical resistance. Melton v. State, 184 Ga. 343(3), 191 S.E. 91.

3. Exception was taken to the following charge: 'It is no defense, however, to the crime of rape when proven, that the female was unchaste or was lewd, or had a bad character for lewdness. Rape may be committed on the most abandoned and depraved strumpet.' The grounds of exception are that this instruction was 'not sound as an abstract principle of law * * *, was argumentative, and contained a summary or deductions of the evidence as might seem to the jury an argument or expression or intimation of an opinion thereon, and was the language used by the solicitor in his concluding argument to the jury.' Immediately preceding the quoted language, and after an instruction on the law of impeachment as affected by the character of the prosecutrix for chastity, the judge charged: 'You may consider evidence, if any, touching the general bad character for lewdness of the female alleged to have been raped, on considering whether or nor the intercourse, if any, was by her consent or forcibly and against her will.' There is no exception to this instruction. Immediately following the instruction excepted to, the judge also charged: 'The general character of the female for chastity or want of chastity may and should be considered by the jury in determining whether or not the intercourse was by her consent or forcibly and against her will.' There is no exception to this instruction. The language excepted to, which conformed to the defendant's statement and testimony attacking the character of the prosecutrix for chastity, was substantially the same and was accompanied by a context similar to the charge dealt with, and held not be erroneous, in Black v. State, 119 Ga. 746(5), 750, 47 S.E. 370. It was not an erroneous statement of 'an abstract principle of law.' Walker v. State, 151 Ga. 341(1), 106 S.E. 347. Nor in view of the context, both preceding and following the statement, charging on a contention of the defendant as to the character of the prosecutrix, can the language excepted to be taken as argumentative or as an expression of opinion.

4. It was not error to admit testimony by the husband of the prosecutrix as to the scratched condition of her feet and legs and her torn dress when he saw her soon after she left the defendant, in corroboration of her testimony that she was forced by the defendant to walk through the woods barefooted and submit to him against her will.

5. The court denied a motion for mistrial on the ground that, during the State's examination of the prosecutrix, the question was asked her as to what was said to her in the woods by a man, whom the defendant, according to the State's testimony, left to guard her during his absence after completion of the alleged offense; and as to whether this man was a 'negro'; and that the latter question and affirmative answer were very prejudicial to the defendant since they injected an issue of 'race' into the case and that while the judge excluded the conversation, he did not rule out the reply of the witness that the man was a negro, and...