Thompson v. State
| Decision Date | 20 June 1925 |
| Docket Number | 4846. |
| Citation | 128 S.E. 756,160 Ga. 520 |
| Parties | THOMPSON ET AL. v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
After charging the jury that they were the "judges of the credibility of the witnesses," the court added "That is, the truthfulness of the witnesses; and you have the right to take into consideration the manner of the witnesses while upon the stand testifying, their interest or want of interest in the case, their means and opportunities of knowing the facts to which they testified, and their personal credibility, as the same may legitimately appear upon the trial, and such other mental tests are you authorized to apply in determining just what witness or witnesses you will believe in the case." The rule stated is substantially correct, and was not erroneous upon the ground that it was inapplicable in a criminal case.
Error is assigned upon the following charge of the court: This charge is not error. It is a substantial restatement of the law contained in section 1036, Penal Code, relating to the prisoner's statement and the weight which the jury are allowed to give it. It did not, as the movant complains express or intimate an opinion of the court as to the truthfulness of the statements of the defendants, nor did it draw any improper distinction between the statements and the evidence in the case, nor did it contain "disparaging statements by the court," nor did it tend to confuse the jury as to the weight to be given to the statements of any one of the prisoners.
The court erred in summarizing the evidence for the state, its claims and contentions, in such a way that the grouping of the facts made the summary argumentative in character, and in such a way as to unduly impress the jury with the horrors of the scene attending the crime with which the defendants were charged.
The court erred in instructing the jury that, if evidence tending to show that the prosecuting witness was "unchaste before the alleged offense took place," the jury might consider such evidence, "if it was satisfactory to" them (the jury). The restriction should not have been placed upon the consideration of the evidence by the jury.
The court erred in charging the jury: "If you find the contentions of the state in this case are true from the evidence, under the rules of law as given you in charge, then all of the defendants would be equally guilty, and should receive equal punishment at your hands." The jury probably would consider this to mean that precisely the same punishment should be given to each of the defendants, while as a matter of law, the jury had the right, under the law relating to indeterminate sentences, to fix the length of the term of confinement in the penitentiary within the limitations prescribed in the statute.
The court erred in stating to the jury, in the course of his instructions, that one of the defendants, Harvey Thompson, had admitted in his statement that he "had sexual intercourse with the prosecutrix on the afternoon alleged in the indictment." Even if the statement of this defendant should be construed as admitting that on other occasions he had had intercourse with the prosecutrix, there is nothing in his statement that can be construed as meaning that he had intercourse with her on the particular day named in the indictment. In another part of the charge there was language used by the court which might be construed as an intimation that the defendant Harvey Thompson had admitted that he had sexual intercourse with the prosecutrix on the day alleged in the indictment.
Error from Superior Court, Ware County, W. V. Custer, Judge.
Harvey Thompson and others were convicted of rape, and they bring error. Reversed.
Dickerson & Kelley, of Douglas, and Parker, Parker & Quarterman, of Waycross, for plaintiffs in error.
A. B. Spence, Sol. Gen., of Waycross, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.
Harvey Thompson, Charlie Arnold, and Mark Thompson were indicted and tried for the offense of rape, and a verdict was rendered, finding the defendants guilty, and fixing their punishment at not less than 15 nor more than 20 years in the penitentiary. A motion for a new trial was duly made by the defendants, and was overruled at the hearing. The plaintiffs in error excepted to that ruling.
"You are also the judges of the credibility of the witnesses--that is, the truthfulness of the witnesses--and you have the right to take into consideration the manner of the witnesses while upon the stand testifying, their interest or want of interest in the case, their means and opportunities of knowing the facts to which they testified, and their personal credibility, as the same may legitimately appear upon the trial, and such other mental tests are you authorized to apply in determining just what witness or witnesses you will believe in the case."
This charge is criticised upon the ground, among others, that it is "largely the preponderance of evidence rule as laid down by section 5732, Civil Code 1910." While the language employed by the court is taken largely from the Code section referred to, which is generally given as a part of the charge to the jury when the court is instructing them as to what they may consider in determining where the preponderance of evidence lies, the part of the section charged is not inapplicable to a criminal case when charged in connection with that portion of the court's instructions to the jury in which the court is dealing with the province of the jury to determine the credibility of the witnesses who have testified in the case. And in this case, after instructing the jury that they were the "judges of the credibility of the witnesses," the trial judge, in immediate connection therewith, charged the jury in the language of the excerpt excepted to. This charge merely gives to the jury matters that they might take into consideration in passing upon the credibility of the witnesses, and the rules stated are substantially correct, and there is no intimation that they should determine any of the issues in the case adverse to the defendants by a preponderance of the evidence. They were duly instructed that, in passing upon the question as to whether the defendants were guilty or not of the crime for which they were indicted, the jury should be satisfied of their guilt beyond a reasonable doubt. The charge here excepted to was not error upon the ground mentioned, nor for any other reason assigned in the exceptions.
"The state claims and contends that it has brought evidence here showing that, about 4 o'clock in the afternoon of the 7th of December, 1924, Harvey Thompson took Gladys Smith to ride from her home in Fairfax to Millwood, in this county; that they were riding in a buggy drawn by a mule; that, when they came near to a road turning off the main highway, Harvey Thompson tried to turn the mule off the road into a road leading to a cemetery; that Gladys Smith prevented Harvey Thompson from driving off the main road at that point; that Harvey Thompson drove about a half mile farther; that he seized her around her neck with one hand and with the other hand drove off the highway into a road leading to a cemetery; that, when they got near the cemetery, Gladys Smith saw the defendants Charlie Thompson and Mark Thompson there; that these defendants came up on either side of the buggy, and that Harvey Thompson got some tobacco, and that a vile statement was then made; that Gladys Smith sprang out of the buggy; that the defendants caught her; that one of them threw her to the ground; that one of them held her hands; that another held her feet; that Harvey Thompson got upon her and raped her; that he had sexual intercourse with her then and there, forcibly and against her will; that Gladys Smith was then and there resisting; that she was pleading for mercy; that she was crying and screaming; that she succeeded in getting away from her alleged assailants; that she went directly home; that she immediately...
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