Smith v. State
| Decision Date | 12 October 1886 |
| Parties | SMITH v. THE STATE OF GEORGIA. |
| Court | Georgia Supreme Court |
October Term, 1886.
1. In a prosecution for assault with intent to rape, where a letter from the woman alleged to have been assaulted to the defendant, written after the alleged assault, was offered in evidence to rebut the testimony of the woman, and it was shown by a witness that a letter was delivered by her to him to be carried and given to the defendant, with instructions that no one else was to see it; that he did so deliver it that at the time the defendant read a part of it to him; that the witness was illiterate and could not read, but saw a blot upon a certain portion of the writing which enabled him to identify it; and that, from the signs and marks upon the letter offered in court, he was of opinion that it was the same letter handed to him by the woman to be delivered to the defendant, this was sufficient proof to carry the letter to the jury, independent of any proof that it was in the handwriting of the woman, although she denied any knowledge of or connection with the transaction. The weight of such evidence was a question for the jury.
( a. ) In the absence of direct evidence of the execution of a paper, it is admissible to resort to proof of the handwriting of the party from whom it purports to emanate; and in that case, any witness is competent to testify as to his belief, who will swear that he knows or recognizes the handwriting, but the source of his knowledge is a question for investigation and goes entirely to the weight and credit of his evidence. In this case, there was sufficient proof of execution to admit the letter in evidence, proof of handwriting being admissible either in corroboration or contradiction of the testimony concerning the letter.
( b. ) Semble that, where two other letters purporting to come from the same source as the first, were shown to experts, who compared them with the first letter and testified that they were of the opinion that the letters were all in the same handwriting, this was sufficient to admit them in evidence.
2. The verdict finding the defendant guilty in this case was contrary to law and the evidence.
( a. ) From the peculiar character of cases of rape and assault with intent to rape, care is to be used with regard to them. The injured female is usually a competent witness, but it is generally laid down that the degree of credit to be given to her evidence depends, more or less upon the concurrence of circumstances with her testimony; for instance, if she be of good fame, if she presently discovered the offence, made pursuit after the offender, and showed circumstances and signs of the injury, if the place where the fact was done was remote from people, inhabitants or passengers, or if the offender fled,-these and the like are concurring evidences which give greater probability to her evidence when proved by others than herself. But if she concealed the injury for any considerable length of time after she had an opportunity to complain, if the place where the fact was supposed to be committed were near to inhabitants or places of common recourse or passage, and she made no outcry when the fact was supposed to be done, when and where it is probable that she might be heard by others, these and the like circumstances carry a strong presumption that her testimony is false or feigned.
Evidence. Criminal Law. Rape. Verdict. Before Judge RICHARD H. CLARK. Fulton Superior Court. September Term, 1885.
Charles K. Smith was indicted for assault with intent to rape, charged to have been committed upon Mrs. John T. Elliott. The testimony is sufficiently stated in the second division of the decision. The defendant was found guilty and recommended to mercy. He moved for a new trial on the following among other grounds:
(1.) Because the verdict was contrary to law and evidence.
(2.) Because the court rejected, when offered in evidence, a letter addressed to the defendant and signed " Lou Elliott," it having been identified by one Latham, a witness for the State, as the original letter received by him from the hands of Mrs. Elliott, and delivered to the defendant. This letter was dated September 6, 1885, addressed the defendant as " Dear Friend," stated the desire of the writer to see him and have a talk with him; also that she would do what she said she would, regardless of what other people said, and that " I told you I was made to do what I have done." -The witness, Ace Latham, testified that Mrs. Elliott gave him a note or letter enclosed in an envelope to deliver to the defendant, which he did; that when the defendant opened it, he read a few lines of it to the witness, and showed him a blot about five lines from the bottom of the letter, having the appearance of two small words run together. The letter and envelope were handed to the witness, and he was asked to identify them. He replied that he could not read, but that they looked like the same that defendant had showed him; that the blot or blur on the letter tendered to him looked like the one he had seen before; that they seemed, from their looks, to be the same papers, though they might be copied from them. Counsel for the defendant asked that the jury be directed to retire in order that the letter might be read to the witness to see whether or not he recognized the contents to be the same as that which the defendant read to him. The court replied, " Just consider it done, and that he says it is; still it is not identified; it is too dangerous to let letters in by the sound to a man who cannot read," and rejected the evidence.
(3.) Because the court rejected two letters addressed to the defendant and signed by " Lou Elliott," sworn to have been in the same handwriting as that in the preceding ground. Walter L. Venable, as a witness for the State, testified that he did not put himself up as an expert, but thought he was a good judge of handwriting; that he had seen a good many handwritings in his life, had been a deputy in the office of the clerk of the superior court, had been a close observer, had done a good deal of copying, and from his experience thought he could judge of handwriting. Being shown the three letters, he testified that he thought they all were in the same handwriting, as also were the addresses on the envelopes. The defendant claimed to have received these letters by mail. One was as follows:
" ATLANTA, GA., Fulton county, Sept. 24, 1884.
DEAR CHARLIE-I will write you a few lines to let you know how I stood. I am the same as ever. I am sorry things are as they are, Charlie; what I told Tom last spring, I told it to keep him from thinking anything about your being there that day, but when I told him that, he went and struck you, and then him and pa made me go to court and swear it; but, Charlie, I can't stand it any longer. I want to see you, Charlie. I will go with you yet where we said; you know where, Charlie. Tom he went on at me till I had to tell him something, and I did not know what to tell him, so I told him that. So I thought there would be no more of it, but when Tom hit you, he made me swear it. Charlie, I would love to see you; I want to have a talk with you before court, for I know if I would get to see you and have a talk with you, I know that I would not have to go to court any more; but, Charlie, I am afraid that Tom and pa will make me go to court. Charlie, if you can get any chance, I want to see you. You know what I told you; I will stick to every word of it. I think as much of you as I ever did. So I will close for this time, as true as ever until death.
LOU ELLIOTT."
The other was as follows:
" ATLANTA, GA., Fulton county, October 5, 1884.
DEAR CHARLIE-I wrote you a few lines the other day. I have not got to see you yet; you surely did not get my letter; if you had, I know you would have come to see me. Charlie, I wrote to you in the other letter how I stood. I am myself the same to you as I ever was; what I have done I was forced to do it; so don't think hard of me, and come over here, if you can get a chance, and we can fix it all right. Charlie, pa and Tom made me go before the grand jury, and I could not help it. I mailed you a letter that morning. I don't see why you did not get it, for I know if you had ‘ a got it you would’ a come over here. Charlie, if you get this, I want to see you as soon as you get it, for it ain't long. I don't want to go back to court any more. I know if I could get to see you, I would not have to go to court any more. Charlie, I will have to close for this time. Come if you get this. As ever until death.
LOU ELLIOTT."
(4.) Because the court refused to allow counsel for the defendant to read the letter of September 6, 1885, to the witness, Latham, to assist him in identifying it, he having testified that he could not read and that a part of the letter had been read to him.
The motion was overruled, and the defendant excepted.
W. H. HULSEY; BIGBY & DORSEY, for plaintiff in error.
C. D. HILL, solicitor-general, by ELGIN LOCHRANE; REUBEN ARNOLD, for the State.
Irrespective of the other errors assigned upon the charge of the court, we are of opinion that this case is controlled by two questions made in the motion for a new trial, viz:
(1.) That the verdict is without evidence to support it, and is consequently contrary to law.
(2.) Because the court erred in rejecting as evidence a letter, dated September 6, 1885, and forwarded by the party alleged to have been assaulted by the hands of one Latham, who was an illiterate man, and who identified the paper, from certain marks on it, as the one sent by him to the defendant.
Two other letters, which were sworn to be in the same handwriting as that above referred to...
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- Smith v. The State Of Ga.
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Pitts v. State, s. 8108, 8109.
...Held, this charge was not error as against the accused. They could not have asked for a more favorable charge. Compare Smith v. State, 77 Ga. 705(2 a). 3. Error is assigned as follows: "The court erred * * * in refusing and declining to charge the jury, in said case, on the evidence of the ......