Staggers v. State, 44746

• Decision Date: 05 December 1969
• Docket Number: 2,Nos. 1,No. 44746,3,44746,s. 1
• Citation: 120 Ga.App. 875,172 S.E.2d 462
• Parties: C. L. STAGGERS v. The STATE
• Court: Georgia Court of Appeals

Page 462

172 S.E.2d 462

120 Ga.App. 875

C. L. STAGGERS v. The STATE.

No. 44746.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Dec. 5, 1969.

Rehearing Denied Dec. 19, 1969.

Henritze & Smith, Rees R. Smith, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Carter Goode, Stephen A. Land, Tony H. Hight, Atlanta, for appellee.

Syllabus Opinion by the Court

HALL, Judge.

Defendant appeals from a conviction for molesting a minor child.

1. The defendant enumerates as error the overruling of his plea of autrefois acquit upon the ground that he had been previously convicted of molesting the same minor child and that this court reversed this conviction by holding the trial court erred in overruling the defendant's motion for new trial. Staggers v. State, 119 Ga.App. 85, 166 S.E.2d 411. The jeopardy provisions of Georgia Constitution of 1945 (Code Ann. § 2-108) and the Constitution of the United States (Code § 1-805) do not prohibit a second trial on the same charge where the defendant has been successful in his motion for new trial in having the conviction set aside for want of sufficient evidence. Staggers v. State, 225 Ga. 581, 170 S.E.2d 430; United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300.

2. Defendant enumerates as error the denial of his motion for mistrial on the ground that the court, in admitting evidence of prior, similar acts, allowed the State to place his character in evidence.

In May of 1967 defendant was arrested and charged with sexually molesting his own daughter, than age 14. At his second trial nearly two years laterT he daughter testified to various acts which the defendant had committed with or upon her, beginning when she was about seven or eight years old and continuing until the time of his arrest. An older sister who was 19 years old at the time of defendant's arrest, was permitted to testify in detail cencerning similar molesting by the defendant from the time she was seven yeard old until she ran away from home at age 15. Defendant initially objected to the admission of this evidence and moved for a mistrial at its completion, contending that the State thereby placed his character in evidence without his first putting it in issue.

Defendant's chief objection to the sister's testimony on similar acts seems to be their remoteness in time from the acts for which he was tried. Of course, remoteness directly affects the logical connection between any two acts, and a logical connection is a basic requirement where an exception is sought to the general rule against admission of prior criminal offenses. Bacon v. State, 209 Ga. 261, 71 S.E.2d 615; Pilcher v. State, 91 Ga.App. 428, 85 S.E.2d 618; Bond v. State, 104 Ga.App. 627(4), 122 S.E.2d 310.

However, remoteness is also relative. Five years would be too long where the similar offenses are possessing liquor, the opportunity for which arises any and every given day between; but where there is a five year age difference between two daughters, the next opportunity to commit a similar offense will be five years away. We cannot say there was no logical connection between the defendant's molesting of his two daughters at exactly the same ages and over the same general period in their lives. The older sister's testimony is relevant to show defendant's intent, bent of mind or general plan to use his daughters to (gratify his) lust or passions or sexual desires, Code Ann. § 26-1301a, an element in the crime with which he was charged. Suber v. State, 176 Ga. 525, 168 S.E. 585; Warren v. State, 95 Ga.App. 79, 97 S.E.2d 194. See also Wigmore, Evidence, 3d Ed. § 357; Agnor, 11 Encyclopedia of Georgia Law 289, § 33; Sloan v. State, 115 Ga.App. 852, 156 S.E.2d 177, certiorari denied 115 Ga.App. 852, 156 S.E.2d 177. While the headnote case of Cox v. State, 165 Ga. 145(2), 139 S.E. 861, appears on its face to be contra, we do not consider it controlling in the instant case and note that it was distinguished by the Supreme Court in Barkley v. State, 190 Ga. 641, 642, 10 S.E.2d 32.

The trial court did not err in denying defendant's motion for a mistrial.

Judgment affirmed.

BELL, C.J., and EBERHARDT, QUILLIAN and WHITMAN, JJ., concur.

JORDAN, P.J., and PANNELL, DEEN and EVANS, JJ., dissent.

JORDAN, Presiding Judge (dissenting).

I dissent from Division 2 of the opinion and would reverse for the reason that this case falls squarely within Cox v. State, 165 Ga. 145, 139 S.E. 861, where the Supreme Court held in an almost identical factual situation that evidence of similar acts with an elder sister was not an exception to the general rule and was erroneously admitted. The Cox case has been cited with approval many times, and relied upon in the leading case of Bacon v. State, 209 Ga. 261, 71 S.E.2d 615. The Cox case was merely distinguished upon its facts in Barkley v. State, 190 Ga. 641, 642, 10 S.E.2d 32, cited in the majority opinion, where the court held admissible evidence that the defendant, on trial for rape, had committed in concert with another man, the offense of rape upon other females...