Spear v. State, 27518
| Decision Date | 22 January 1973 |
| Docket Number | No. 27518,27518 |
| Parties | Gary Bernard SPEAR v. The STATE. |
| Court | Georgia Supreme Court |
Glenn Zell, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Richard E. Hicks, Joel M. Feldman, J. Melvin England, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, William F. Bartee, Jr., Asst. Attys. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
In appealing his conviction and sentence for rape, and the overruling of his motion for a new trial the defendant makes two assertions, (1) that the trial judge erred in failing to charge without request on good character as a defense as it was demanded by the evidence and a substantive defense, and (2) that the evidence is insurfficient to corroborate the testimony of the victim as to rape instead of attempted rape. Held:
1. While present law exempts the defendant in a criminal case from the strict requirements imposed on litigants in civil cases to preserve an issue on the giving of or the failure to give instructions to the jury (Ga.L.1968, pp. 1072, 1078; Code Ann. § 70-207) this does not relieve him from the necessity of requiesting instructions, or making timely objection in the trial court on the failure to give instructions, except in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.
The real issue in the present case, however, does not arise from the unchallenged and uncontradicted testimony of the defendant to the effect that he had worked steadily since he was 12 years old, and had never been in trouble before, which he insists first in his motion for new trial put his character in issue, but instead is made by the fact that the victim, a high school student, age 15 at the time of the incident, positively identified the defendant, then age 16, as a fellow student who accosted and assaulted her in a girl's restroom. The restroom was near a classroom where he was found, attending his regularly scheduled class, shortly after she made the complaint, and where he insists he was present at the time the attack is shown to have occurred. There is testimony and other evidence to support the testimony of the victim and the defendant. A member of the victim's class, sent by her teacher to ascertain the delay of the victim in returning to class, after the teacher had permitted the victim to go to the restroom to treat a minor injury, positively identified the defendant as being present in the...
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