Williams v. State
| Docket Number | 16839. |
| Decision Date | 12 October 1949 |
| Citation | 55 S.E.2d 589,206 Ga. 107 |
| Parties | WILLIAMS v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The evidence was sufficient to authorize the verdict. A man may be guilty as a principal in the second degree of rape upon his wife.
2. Where, after verdict, a juror is attacked as being disqualified by reason of relationship to the prosecutor, it is essential for the accused and his counsel to establish that neither knew of the relationship, nor could it have been discerned by the exercise of ordinary, diligence, prior to the rendition of the verdict.
3. Where error is alleged in the admission of testimony, but no ruling thereupon was made by the trial court, no question for determination by this court is presented.
4. In a rape case, evidence of acts of violence by the accused upon the person of the victim immediately after the commission of the act, is admissible to show the state of mind of the accused, and as illustrating that the female acted under duress in delaying a report of the rape.
5. The evidence referred to in the seventh ground of the amended motion was admissible.
6. The evidence did not require a charge on the law of conspiracy.
7. There was no error in admitting the evidence referred to in the ninth ground of the amended motion.
8. No question for determination is presented by the tenth ground of the amended motion.
9. It was not error to fail to charge on the law of confessions.
10. It is not error to refuse to direct a verdict in a criminal case.
11. The trial judge did not err in refusing to give the requested charge.
12. A petition by certain of the trial jurors, requesting the court to grant a new trial, is not a proper ground of an amended motion for new trial.
Thurman Williams, a white man, was jointly indicted with James Dunn a Negro man, for rape upon the person of Mrs. Moran Williams the wife of Thurman Williams. The evidence disclosed two instances where the husband required his wife to submit to the Negro man, December 1, 1948, at the home of the accused, and February 10, 1949, in the woods.
The accused, Thurman Williams, was separately tried and convicted without recommendation. Exceptions to the overruling of an amended motion for new trial is brought to this court.
John F Brannen, Statesboro, Kirkland & Lane, Metter, for plaintiff in error.
Walton Usher, Sol. Gen., Springfield, W. G. Neville, Statesboro, Eugene Cook, Atty. Gen., Rubye G. Jackson, Atlanta, for defendant in error.
ATKINSON, Presiding Justice (after stating the foregoing facts.)
1. We have reviewed the brief of evidence adduced upon the trial. It would serve no useful purpose to relate here the sordid details of the two occurrences appearing in the brief of evidence. Suffice it to say that, as to the general grounds of the motion for new trial, the evidence was sufficient to support the verdict on the grounds of duress on the wife by the acts and conduct of the accused, causing her to submit to intercourse with the Negro man, which evidence is amply corroborated by the testimony of the Negro man. A man may be principal in the second degree to rape upon his wife. Elliott v. State, 190 Ga. 803, 10 S.E.2d 843.
2. By the first ground of the amended motion, error is alleged by asserting that one of the trial jurors was related to the prosecutor within the prohibited degree and therefore disqualified to serve. In support thereof, affidavits were submitted showing that the grandfather of the juror was a brother of the grandmother of the prosecutor, thus making the great grandfather and great grandmother of each common ancestors. There was no counter-showing denying this relationship. This being true, the prosecutor and the juror were third cousins and related by consanguinity within the sixth degree according to the civil law. Under the act, Ga.L.1935, p. 396, now codified in Code Ann. § 59-716, it is provided that 'all trial jurors * * * shall be disqualified * * * when such juror is related * * * to any party interested in the result of the case or matter, within the sixth degree, as computed according to the civil law.' The civil law is computed by counting from one of the persons up to the common ancestor, and then down again to the other person. See diagram in Smith v. State, 2 Ga.App. 574, 59 S.E. 311, and Ethridge v. State, 163 Ga. 186, 136 S.E. 72. Accordingly, this juror, being related within the prohibited degree to the prosecutor, was disqualified to serve. Harris v. State, 188 Ga. 745(2), 4 S.E.2d 651, and citations.
But the mere fact that the juror was disqualified, standing alone, is not sufficient to require the grant of a new trial. The accused must go further and show that neither he nor his counsel had knowledge of such disqualification. If either had such knowledge and took the chance of being acquitted by the jury upon which this juror was serving, they could not then be heard to say that the juror was disqualified. Lampkin v. State, 87 Ga. 516(7), 13 S.E. 523.
In attacking a juror, after verdict, by reason of relationship to the prosecutor, we are unable to find any promulgated rule as to what the accused and his counsel must show by affidavit as to their lack of knowledge of such relationship. To be more specific, what period of time must be covered? Is it sufficient to say that they had no such knowledge 'before the case began to be tried,' as set forth in the affidavit of counsel in the instant case, or 'before the case was tried' as contained in the affidavit of the accused?
This question, in principle, is the same as the requirements of counsel and the accused to show lack of knowledge of the existence of evidence where a new trial is sought on the grounds of newly discovered evidence. In such cases provision is made under the Code, § 70-205, that counsel and the accused must show they did not know of the existence of such evidence 'before the trial.' As far back as Berry v. State, 10 Ga. 511(14), this court has required newly discovered evidence to have been acquired after rendition of the verdict. See also Clark v. Carter, 12 Ga. 500(3), 58 Am.Dec. 485; O'Barr v. Alexander, 37 Ga. 195(7); Colquitt v. Smith, 72 Ga. 515(2); Norman v. Goode, 121 Ga. 449, 453, 49 S.E. 268; Harris v. State, 188 Ga. 745(2), 4 S.E.2d 651. In Moore v. State, 202 Ga. 357(1), 43 S.E.2d 251, 253, it was said: 'This court in Widincamp v. State, 135 Ga. 323, 69 S.E. 535[539], has construed the first sentence of the statute to mean that, 'When newly discovered evidence is relied on as a ground for new trial, it should appear that the defendant and his counsel were ignorant of it until after the trial.''
We find no instance where a case has been reversed by reason of relationship of a prosecutor and juror except where a showing was made that such relationship was not...
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