Vanderford v. State
| Decision Date | 14 November 1906 |
| Citation | 55 S.E. 1025,126 Ga. 753 |
| Parties | VANDERFORD v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
An application for a change of venue in a criminal case, on the ground of the existence of prejudice against the defendant and that he cannot obtain a fair and impartial trial in the county where he has been indicted, is addressed to the sound discretion of the presiding judge; and where the evidence is conflicting, his judgment will not be reversed, unless it appears that his discretion has been abused.
Where in a criminal case, the accused was in custody, and, by inadvertence, a witness was placed on the stand, and began to testify, and in a few minutes it was discovered that the accused was absent from the courtroom, whereupon the presiding judge had him brought into court, withdrew from the consideration of the jury and small amount of testimony which had been given, warned them to give no consideration to it and thereupon the examination was recommenced, and the witness, in the presence of the defendant testified to the same matter which he had stated previously, there was no error in this proceeding, and it furnished no ground for the granting of a new trial to the defendant after conviction.
Where the court ascertained that the defendant's counsel knew that he was absent before the court discovered the fact, and the court certifies that, in a low voice, he said to counsel that the court was trying to give them a fair trial, but that they did not seem to appreciate it; that this was said to counsel who sat directly in front of him; that, in his judgment, it could not have been heard by the jury; and that the court stenographer, who was sitting between the court and the jury, did not hear it, such remark will not require a reversal.
It is not necessary for the judge, in charging a jury in a criminal case, to make introductory remarks as to the importance of the case both to the state and the accused, but it is not error requiring a new trial for him to do so, provided what is said is not a misstatement of the law, or calculated to prejudice the minds of the jurors against the accused.
Force is an element of the crime of rape, but it may be exerted not only by physical violence, but also by threats of serious bodily harm which overpower the female, and cause her to yield against her will.
There was no error against the defendant, requiring a new trial, in the charge of the court to the effect that a man cannot be convicted of the offense of rape upon the testimony of the woman alone, unless there are some concurrent circumstances which tend to corroborate her evidence; nor in the charge given touching such corroboration.
There is nothing in any of the other grounds of the motion for a new trial which require a reversal. The evidence amply sustained the verdict, and there was no error in overruling the motion for a new trial.
Error from Superior Court, Gwinnett County; C. H. Brand, Judge.
R. L Vanderford was convicted of crime, and brings error. Affirmed.
It was not error against defendant requiring a new trial to charge that a man cannot be convicted of rape on the testimony of the woman alone, unless there are some concurrent circumstances tending to corroborate such testimony.
R. L. Vanderford was indicted for rape committed on the person of Pearl Helton. The evidence for the state showed in brief as follows: Pearl Helton was a girl 15 years of age. On March 22, 1906, she was at the house of her sister who lived about a mile from the Helton home. Shortly after dinner the defendant appeared at the home of her sister, and stayed some time. He inquired when Pearl intended to return home, and was informed that she would do so that afternoon. Soon after this was definitely stated, he left. About an hour before sundown Pearl and her sister, Mrs. Sells, left the house of the latter, and started toward the home of the former. Between the two places there was a swamp through which the way passed. After going part of the way, the sister turned back to return to her own home. A short while after this, Pearl saw the defendant in front of her. He turned, met her, and asked her if she was not afraid to go through there by herself; to which she replied that her sister accompanied her a portion of the way. He then asked her if she was not afraid of negroes; to which she answered that she was not much so. He asked her if she was afraid of him. He seized her by the arm, dragged her about five steps from the path, and threw her down. She screamed, and resisted. He put his hand over her mouth, and said, if she screamed again and did not hush, he would cut her throat. He threw her down, and committed rape upon her. She admitted in her testimony that he told her to push down her drawers, and that she did so, but gave as her reason that he had threatened to cut her throat, and that she was afraid of him, fearing that he might kill her, or hurt her worse. After he had accomplished his purpose, he told her to fasten up her clothes, but she did not do so, and went on towards her home, holding up her clothing with her hands. Her dress had become partly unfastened. Her screaming was heard by her sister, who was returning home. The latter went back towards the place whence the outcry came, and also heard a sound as if the girl were choking, and a man's voice which sounded as if he were scolding. The sister fell, and could not go further, and then returned to her house, and reported what she had heard. Her husband mounted a horse, and went to the place indicated, but found no one there; but he overtook Pearl going across the field hurriedly. She turned and told him that she wanted him to kill Vanderford, the defendant, that he had gotten her down in the swamp. Her clothes were then unpinned, and she was holding them up. She made similar statements to others upon arriving at her home. When she reached there she was excited, and was screaming, or crying. Her hair was partly down over her face, and there was trash and straw on her clothing. She was examined some days later by a physician, who discovered that her hymen had been ruptured, and that there was a discharge of bloody pus from the vagina. He also found bruises on her left arm, like finger prints. She was in bed, and appeared to be very sore. Another witness testified that he found an irritated place on her mouth, which could have been made by the pressure of a hand. She remained in bed for six or eight days, or, as one witness said, about two weeks. At the place where she indicated that the crime had been committed, there were appearances of a struggle having taken place, and there were two indentations, as if made by the toes of a pair of shoes. The defendant is a married man with three children. The accused undertook to prove an alibi, and also to show certain conflicting statements on the part of witnesses for the state, and certain facts not consistent with the testimony of some of them. He sought to show that the girl had been to church with young men, and that one of them had left the neighborhood not long after the occurrence. In rebuttal, the state introduced witnesses who testified to the good character of the girl for chastity; and a brother of the young man who had left the community testified that his leaving was for other reasons, and had no connection with the crime. The jury found the defendant guilty, and recommended him to mercy; whereupon he was sentenced to the penitentiary for 20 years. He moved for a new trial, which was refused, and he excepted.
J. A. Perry, J. C. Flanigan, M. D. Irwin, and John R. Cooper, for plaintiff in error.
S. J. Tribble, Sol. Gen., and John C. Hart, Atty. Gen., for the State.
LUMPKIN, J. (after stating the facts).
1. A motion was made for a change of venue, which was overruled. The evidence as to whether the defendant could get a fair and impartial trial in Gwinnett county was conflicting. The matter was one which addressed itself to the sound discretion of the presiding judge, and we cannot say that he erred in the use of his discretion. Rawlins v. State, 124 Ga. 31, 52 S.E. 1; Young v. State, 125 Ga. 584, 54 S.E. 82.
2, 3. The sixth ground of the motion for a new trial complains of certain occurrences on the trial, the material matters alleged being that a witness for the state had been sworn and had testified for about five minutes, when it was discovered that the defendant was not in court; that the court then stopped the trial, had the sheriff to bring in the prisoner, and asked his counsel whether they wanted the witness to repeat the testimony given; to which they replied that they had nothing to say one way or the other. Whereupon, the court said: "Gentlemen, the court is trying to give you all a fair trial, but you don't seem to appreciate it." The presiding judge did not certify this ground as set out, except with the addition of an explanatory note as follows: ...
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