Whitley v. State
| Decision Date | 09 May 1939 |
| Docket Number | 12722. |
| Citation | 3 S.E.2d 588,188 Ga. 177 |
| Parties | WHITLEY v. STATE. |
| Court | Georgia Supreme Court |
Rehearing Denied June 17, 1939.
Robert F. Morgan, of Decatur, and John H. Hudson and James R Venable, both of Atlanta, for plaintiff in error.
Roy Leathers, Sol. Gen., of Decatur, Ellis G. Arnall, Atty. Gen and Duke Davis, Asst. Atty. Gen., for the State.
Syllabus Opinion by the Court
1. The undisputed testimony in this record showed, and the statement of the defendant on trial did not deny, that a rape as alleged was committed by the person who was jointly indicted but not tried with this defendant. While there was testimony for this defendant, besides his statement to the jury, going to show that he did not in any way participate in the crime, and was not even present in the house where it occurred, his conviction was authorized by the corroborated testimony of the alleged victim that while the other defendant was forcibly removing her clothes this defendant was aiding him by holding her arms and restraining her from getting away.
2. It is a rule that where a graver charge, such as rape necessarily includes an offense of lesser grade, such as assault and battery, particularly if the minor offense is expressly alleged in the indictment (Peters v. State, 177 Ga. 772, 773, 171 S.E. 266, and cit.), and that it is the duty of the judge, without request, to instruct the jury as to the principles of law applicable to the minor offense, if under any view of the evidence, independently of the defendant's statement, a finding that the defendant was guilty of the minor but not the major offense would be authorized. It is, however, not error to fail to instruct the jury as to the minor offense, where all the evidence connecting him with the transaction shows that the minor offense was necessarily but an incidental part of the major offense perpetrated. Moore v. State, 151 Ga. 648, 663, 108 S.E. 47; Lewis v. State, 156 Ga. 862, 120 S.E. 124; Canida v. State, 130 Ga. 15, 60 S.E. 104; Gorman v. State, 183 Ga. 307(5), 309, 188 S.E. 455. Under any view of the evidence in this case, if the defendant was guilty of an assault and battery as charged in the indictment, he was also necessarily guilty of the major offense of rape, as charged, by being a principal in the second degree present and aiding and abetting by his assault the perpetration of the major offense by the codefendant. Accordingly, the court did not err in failing to charge the law of assault and battery.
3. Even though it could be held to have been erroneous to admit the testimony of a physician, that after the alleged crime and while this defendant, the alleged victim, and their companions were riding back in an automobile, the defendant stopped at the office of the physician and received a hypodermic injection, on the ground that such evidence attacked his character, which was not put in issue, by having the effect of showing that he had been drinking or was drunk or was receiving a hypodermic as a result of the alleged occurrences, the admission of this evidence was harmless, since similar testimony was admitted, without objection, that when the car reached the house of the physician, this defendant said he was 'going to get a shot' of 'dope,' went inside, and 'when he took some dope, he just passed out,' and since none of such evidence was controverted by the defendant.
4. The court did not err in excluding, as irrelevant and immaterial, the testimony of the alleged victim, by which the defendant sought to prove, that, while the defendant and others were accompanying her in an automobile to the lake where it was claimed the crime occurred later in the evening, she said that she 'had a boy friend or husband, one or the other, in jail, * * * and that [she] had to have seven dollars to get him out of jail;' or err in excluding the testimony of one of those present that she heard 'a remark [by the alleged victim during the trip] about her boy friend being in the stockade.' Such testimony did not, in itself or in connection with any other admitted or offered testimony, tend to prove, as contended by the defendant, that 'the prosecution was a frame-up for the purpose of extorting money.'
5. Code, § 38-1804. While there...
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