Rider v. State

• Court: Georgia Supreme Court
• Citation: Rider v. State, 196 Ga. 767, 27 S.E.2d 667 (Ga. 1943)
• Decision Date: 08 October 1943
• Docket Number: 14637.
• Parties: RIDER v. STATE.

27 S.E.2d 667

196 Ga. 767

RIDER v. STATE.

No. 14637.

Supreme Court of Georgia

October 8, 1943

Rehearing Denied Nov. 12, 1943. [Copyrighted Material Omitted]

Syllabus by the Court.

1. While customarily a remittitur from this court is not transmitted to the trial court until ten days shall have elapsed from the time of rendition of judgment by this court it is within the discretion of the court to order it forwarded sooner.

The remittitur having, in the discretion of this court, been forwarded to the trial court in less than usual period of ten days, it was the duty of the judge to make the judgment of this court the judgment of the trial court, and his action in doing so afforded no legal grounds for objection to such entry, or to support a motion to vacate the judgment, or to grant a postponement of the hearing of the case which was set for trial within two days from the time of entry of such judgment.

2. Where the prosecutrix was unable to state the exact spot or hollow in which, as she testified, the defendant committed the alleged crime for which he was being tried, but testified that the crime was committed between the house of the defendant's father and a certain river, venue was sufficiently proved by the State when another witness, a deputy sheriff, testified that, although he could not say what particular spot or hollow the prosecutrix was referring to in the testimony which he heard, he had been in that locality, and that, if the crime was committed at a spot between the described house and the river, that spot was in the county wherein the case was being tried.

3. The evidence requiring a verdict of guilty of the major offense of rape, if guilty at all, the court did not err in refusing to give a requested charge on the law of assault with intent to rape.

4. Where the evidence is conflicting as to whether a particular thing did or did not occur, it is the general rule that if the judge charges the jury that the existence of a fact testified to by one positive witness is rather to be believed than that such fact did not exist because many witnesses who had the same opportunity of observation swear that they did not see or know of its having transpired, it is reversible error not to charge in connection therewith the proviso that the witnesses be of equal credibility; but such a charge as to the weight to be given to positive and negative testimony, without the qualification named, will not require a reversal when the positive testimony in regard to the fact under consideration is introduced by the losing party and the negative testimony is introduced by the successful party, since such a charge would be more favorable to the losing party than he would have a right to ask.

5. The objection that a quoted excerpt of the charge was erroneous and injurious because it was a summary of the evidence for the State, favorable to the State, without a summary of the evidence on cross-examination, favorable to the defendant, and was argumentative, and an expression of an opinion by the court, and incomplete and confusing, is without merit.

6. The charge of the court, that 'if the defendant by means or display of a weapon brought such fear to the female that she was afraid not to consent, and if by the use of a weapon she was intimidated to the extent that she dared not [refuse] to give her consent, and the defendant under these circumstances had carnal knowledge of her, and you believe that to be the truth of the case beyond a reasonable doubt, then I charge you that intercourse with [the prosecutrix] under such circumstances would be rape whether [the prosecutrix] offered any physical resistance or not,' stated a correct principle of law as applied to the evidence, and was not error for the assigned reasons that it was the expression of an opinion, and made a summary of the evidence favorable to the State and prejudicial to the defendant.

7. Where the court charged on the question of corroboration that the jury may look to 'all the facts and circumstances of the case; and if the evidence showed that a rape was committed upon her, the jury should investigate whether she made at the time or soon thereafter an outcry, and whether or not her clothes were torn or her body or person was bruised and bleeding or scratched,' which was authorized by the evidence, the further charge, 'and on the question of corroboration you may consider any other act or any other thing which the defendant--which the person alleged to have been raped may have done,' was not subject to the objection that it was too broad, and, in connection with the statement of the court immediately theretofore, was the expression of an opinion that the prosecutrix made an outcry and that her clothing was torn and her body bruised, bleeding, and scratched at the time of such outcry following the alleged rape upon her by the defendant.

8. The ground consisting of several pages wherein are related numerous occurrences on the trial of the case, objections by defendant's counsel, colloquies between counsel, rulings by the court, and other matters, is too improperly framed and confusing to present any question for decision.

9. The ground complaining that the court refused to permit the defendant's counsel to ask the prosecutrix a certain question as to her conduct while being held as a material witness at the jail is incomplete and without merit, for reasons shown in the opinion, infra.

10. The refusal of the court to permit defendant's counsel to seek to elicit from the prosecutrix, on cross-examination testimony, that, while her husband was in jail on one occasion, she had been at the home of a named negro woman, dancing with other men, was not prejudicial error on the ground that it deprived the defendant of the right to show by another person that the prosecutrix did engage in such conduct.

11. The testimony of a deputy sheriff, referred to in headnote 2 above, fixing the venue as the county in which the case was being tried, was not subject to the objection that it was hearsay; the witness being familiar with the territory described by the prosecutrix, and his information as to the alleged crime having been committed in such locality having been acquired by him from testimony of the prosecutrix in the course of the trial, and not otherwise. While the witness' knowledge of the described locality was based on reputation, and not from an actual survey made by him, that fact did not render his testimony inadmissible on the question of venue.

12. Another ground involves the same question dealt with in the preceding headnote, and is without merit.

13. The question asked by the court of a witness testify as to venue, 'But the place she locates in her testimony is in Lumpkin County,' was not, when considered in the context of other questions asked by the court to test the knowledge of the witness, harmful error for the assigned reason that it conveyed to the jury the idea that proof of location had been made, and that the court was satisfied as to the venue.

14. The action of the court in restraining the defendant's counsel from continuing to question the prosecutrix on a subject which, as properly termed by the court, was a delicate matter, as affecting the sensibilities of a female witness, and which the record shows to have been sufficiently presented to the jury, was not harmful error on the ground that it amounted to an expression of an opinion, created a sympathy for the witness, and was a rebuke to counsel; but it was a proper exercise of the right of the court to restrain useless and unnecessary prolongation of examination, and to control the conduct of counsel towards an opposing witness.

15. The statement by the court to the defendant's counsel, that if he did not contend that the prosecutrix had changed her testimony, after counsel had stated that he did not so contend, it would be unfair to her to question her in that respect, was not error for the assigned reason that it constituted harmful and prejudicial error against the defendant, and created in the minds of the jury the impression that the witness was being unfairly treated and disparaged defendant's counsel.

16. The verdict was authorized by the evidence.

Alvin Rider was indicted for the offense of rape. On the trial the evidence was substantially as follows:

The prosecutrix testified that she has been married for a year and seven months, was twenty-one years of age, and knew the defendant. On August 16, 1942, she and her husband met the defendant at Tommy Porter's store, where a meeting was being held about sundown. Bud Washington, a colored man in the company of the defendant, called her and her husband to where the defendant was in his truck, and the defendant told them that he had a job for her husband, and that he would pay him $2 a day and keep $1 on the money her husband owed him. He stated that he had a shack he wanted to rent them, and asked them to go and see it. They went to the shack, and decided to live in it. After leaving this place, and riding in the truck with the defendant, the truck was stopped on the road, and the defendant asked Bud Washington to get out and fix the truck. Her husband got out at this time, and the defendant requested him to get a tire tube and to knock the cap off the gas tank; and when her husband was bringing the tube the defendant struck him with a pistol and kicked him in the stomach, and after that her husband ran. She immediately started screaming and crying, and the defendant drew his pistol on her, and with his pistol continuously pointed at her he made her cross the river nearby on a foot-log, and made the statement that he was going to do to her as he pleased that night. She was afraid of him, and begged him to let her alone and...