Rehearing
Denied Jan. 20, 1936.
Syllabus by Editorial Staff.
Evidence
sustained conviction for rape.
Charge
precluding conviction on circumstantial evidence alone unless
proved facts excluded every reasonable hypothesis save that
of accused's guilt held not erroneous as
authorizing conviction on circumstantial evidence alone or as
expressing opinion that there was sufficient circumstantial
evidence to authorize conviction.
In rape
prosecution, charge on corroboration of prosecutrix
held sufficient.
Refusing
new trial for alleged separation of jury held not
abuse of discretion, in view of conflict in evidence as to
whether alleged separation took place.
Refusing
new trial for alleged prejudice of juror held not
abuse of discretion, in view of conflict in evidence as to
whether juror was prejudiced.
Error
from Superior Court, Warren County; C.J. Perryman, Judge.
Lloyd
Shivers was convicted of rape, and he brings error.
Affirmed.
In rape
prosecution, charge on corroboration of prosecutrix held
sufficient.
Lloyd
Shivers was convicted of the offense of rape and given a
sentence of 2 to 4 years in the penitentiary. His motion for
new trial was overruled, and he excepted.
The
prosecutrix testified: "My name is Inez Crawford. I was
seventeen years old on the 21st of December, 1933. I know
Lloyd Shivers. I saw him on the 25th of December, 1933. When
I first saw him I was at Mr. Deal Shelton's, near Cadley.
I went up there the night before. I went up there with a girl
friend of mine, Bessie Shelton. I went up there to spend the
night with her. I was to come back with Mr. and Mrs. Ray
Simonds. They came up there the next morning with Lloyd
Shivers. They came up there in Mr. Shivers' car. I did
not know how they were going to come back when they came up
there. I went back in that automobile with them. As to
whether I asked them to let me go back in it, Bessie Shelton
asked for me. Bessie was the girl I was with. I came back in
the automobile. We first went to Mr. Simonds' home. I got
out there, intending to spend the night. I had no way to go
home. They never asked me to spend the night; and Lloyd
Shivers asked me to go home with him, and I started home in
the automobile with him. It was about 7 o'clock, it was
dark. Mr. Shivers' home, around the road, was about two
miles from my home; around the path it was not a half mile.
The way I went it was about two miles. I did not go all the
way without stopping. I went about half a mile before I
stopped. He stopped the car in a hollow next to the creek, in
a swampy place. As he was stopping the car he says, '* *
* Damn this thing;' and I say, 'What is the
matter?' and he says, 'The * * * damn thing ain't
getting any gas.' He went around the car and came back
and I thought he was going to fix the car, and he came back
and caught around my waist and nearly snatched me out, and he
says, 'Come on, get on the ground,' and he bruised my
right hand, and he couldn't get me out, so he had
intercourse with me against my will. I couldn't help
myself. That was in Warren County. Then he took me home. When
I got to the
house I got out and went in, and in about five minutes he
came in the house. I did not say anything to him then, and he
did not say anything to me. I did not say anything to my
mother, because I knew they did not want me with Lloyd
Shivers. I knew I was in trouble, and I decided to keep it to
myself. I finally told my mother, because it got to grieving
me so I told it. I got to where I could not eat and
sleep."
Her
mother testified that when the prosecutrix returned home with
Lloyd Shivers on the night in question she "looked pale
like she was sick or frightened, or maybe both. * * * I did
not take particular notice of her clothes. Lloyd Shivers came
in later * * * after Irene had come in, * * * and got a drink
of water and talked to my daughter-in-law a few minutes * * *
Irene took off her coat and hat, and * * * I seen blood on
her dress. I says, 'Irene, I hope you have not been in
company in that shape.' * * * I says, 'Irene, are you
sick?' and she says, 'Yes, mama, I never eat much for
dinner to-day.' She went down hill gradually. * * * I
could hear her at night mumbling and turning over in her
sleep, and I told my husband, 'If Irene doesn't get
better we will have to take her to the doctor.' On the
29th day of January I was milking, and I came in the house
and Irene fell down on the bed, and I says, 'What in the
world is the matter?' She told me she was grieving over
the way Lloyd Shivers treated her on the night he brought her
home." On cross-examination the mother testified that
she had never warned the prosecutrix about going with Lloyd
Shivers; that she "did not think Lloyd Shivers was that
low down at that time."
A
physician who examined the prosecutrix after she made
complaint the latter part of January, 1934, testified
"I found some bruises on her. I have forgotten the exact
location. I think they were on one or both legs and thighs. I
made a local examination to see if she had been entered by
something. There was no blood or anything like that. It was
stretched. The hymen was broken. Those bruises were not
fresh. I could not say how old they were, but they were
several days old. A bruise will vary; it depends on how badly
bruised and the physical condition of the person bruised.
They had turned yellow. They could have been there as much as
thirty days. I don't recall exactly how many bruises I
found on her body. I found...
