Warren v. State, 36491

• Decision Date: 22 January 1957
• Docket Number: No. 2,No. 36491,36491,2
• Citation: 95 Ga.App. 79,97 S.E.2d 194
• Court: Georgia Court of Appeals
• Parties: Lewis WARREN v. The STATE

Page 194

97 S.E.2d 194

95 Ga.App. 79

Lewis WARREN v. The STATE.

No. 36491.

Court of Appeals of Georgia, Division No. 2.

Jan. 22, 1957.

Rehearing Denied Feb. 6, 1957.

Syllabus by the Court

1. On the trial of the defendant for assault with intent to rape it was not error for the court to admit testimony that some 10 months previously the defendant had raped the victim named in the indictment, nor to charge that such testimony was admissible for the sole purpose of showing, if it did show, motive or scheme on the part of the defendant and in that way connect him with the commission of the crime charged in the indictment.

2. While a defendant may not be convicted of assault with intent to commit a crime where the crime charged is shown to have been in fact completed, this rule does not militate to exclude evidence that at a time prior to that named in the indictment the defendant committed the same crime which he is charged in the indictment as having again attempted to commit.

3. The evidence was sufficient so support the verdict and the trial court did not err in denying the motion for new trial.

Lewis Warren was indicted, tried and convicted in the Superior Court of Floyd County for assault with intent to rape an 11-year-old child who was his niece by marriage. He assigns error on the denial of his motion for a new trial on the general grounds as amended y the addition of 3 special grounds.

Gary Hamilton, Bert Garstin, Vaughn Terrell, Rome, for plaintiff in error.

Chastine Parker, Sol. Gen., Rome, for defendant in error.

TOWNSEND, Judge.

1. The assault upon which the indictment was predicated was alleged to have occurred in July, 1956. Error is assigned in special ground 1 on the admission of testimony by the same witness that on the previous September the defendant had taken her into his bed and had sexual intercourse with her, on the ground that it showed a separate and distinct criminal offense not charged in the indictment. In special ground 2 error is assigned for the same reason on a charge of the court to the effect that evidence of other crimes not set out in the bill of indictment was submitted not for the purpose of establishing guilt of such other crimes but solely for the purpose of corroborating the testimony of the witness, the fact of corroboration being for the jury; that the State contends it is a circumstance to be considered in showing whether or not a motive or scheme existed on the part of the defendant, and such testimony is admitted solely on the question of whether or not it shows such motive or scheme or tends in any way to connect the defendant with the offense charged in the indictment, this being exclusively for jury determination; that the defendant is on trial for the offense charged in the indictment and for no other offense; that where knowledge, motive, intent, good or bad faith or other matters dependent upon state of mind are involved as material elements of the offense charged, evidence of similar conduct with reference to other transactions is admissible only insofar as it may tend to illustrate the defendant's state of mind on the subject involved.

(a) In crimes involving sexual offenses, evidence of similar previous transactions is admissible 'to show the lustful disposition of the defendant [and] to corroborate the testimony of the victim as to the act charged.' McMichen v. State, 62 Ga.App. 50, 7 S.E.2d 749, 751. See also Graham v. State, 86 Ga.App. 896, 73 S.E.2d 46, and citations. Under these authorities, evidence of previous commission by the defendant of the offense of rape on the witness was admissible to show motive and the intent of the...