Wright v. State
| Decision Date | 10 March 1937 |
| Docket Number | 11670. |
| Citation | 190 S.E. 663,184 Ga. 62 |
| Parties | WRIGHT v. STATE. |
| Court | Georgia Supreme Court |
Error from Superior Court, Fulton County; James C. Davis, Judge.
Will Wright was convicted of rape, and he brings error.
Affirmed.
Syllabus by the Court.
Where the verdict finding the defendant guilty of rape, without recommendation, under the Code, §§ 26-1303, 26-1304, is supported by the evidence, and none of the grounds of the motion for new trial show any error requiring a reversal of the judgment refusing a new trial, such judgment will be affirmed.
Jesse B. Simmons and Otey B. Mitchell, both of Atlanta, for plaintiff in error.
John A Boykin, Sol. Gen., J. Walter LeCraw, and E. E. Andrews, all of Atlanta, and M. J. Yeomans, Atty. Gen., and O. H. Dukes and Geo. L. Goode, Asst. Attys. Gen., for the State.
Will Wright, a negro man, was indicted for the rape of a named white girl. Upon arraignment Wright pleaded not guilty. The evidence, including that of the injured female, made substantially this case: The victim of defendant's alleged crime was between twelve and thirteen years of age at the time. The defendant was an employee of the park department of the city of Atlanta, at the Grant Park Zoo, and his duties consisted in feeding the wild animals. He had a key to the meathouse. The city would buy old mules and horses for animal food, kill and butcher them, and keep the meat in the house, where there was a refrigerator, benches, meat blocks, a stove, and sink. The building, housing the major part of the caged animals, was nearby. The injured female together with other young children, was in the habit of playing in the park and around the zoo. There they made the acquaintance of the defendant, who was about fifty years of age. He got the female involved in this case to enter the meathouse with him, and there he would pat her legs and play with her private parts. On one occasion, the girl lay down upon a bench in the meathouse, and the defendant pulled up her dress, and, after feeling of her legs, tried to insert his penis in her privates, but failed. He got up, went to the sink nearby, and discharged semen. On another occasion, he evidently tried to have sexual intercourse with the girl with both standing erect, and was unable to penetrate her privates, but nevertheless ejaculated on some iron pipes in the meathouse. The injured female testified to other occasions, and to an occasion on a certain day when the defendant succeeded in penetrating her privates with his penis. No effort was made by her to resist the defendant. A physician, who examined the female after the alleged rape, stated that her vagina would admit two of his fingers, and there were no tears; that that was an indication that she had had sexual intercourse, with that much opening; that it would take the male organs of a man to make such an opening; and that it was his opinion that the development of her private parts would admit the male organs of a man. The girl testified that a boy of nine years, two or three years before, had 'played with her.' The defendant gave to this girl small amounts of change on different occasions, during a period of several weeks, when all this conduct was taking place, and he purchased from her tickets for candy pullings and showed her other favors. The discovery of the alleged crime was brought about by the fact that on one afternoon the girl accosted the defendant and urged that he buy from her some crochet work which her mother had given her to sell. The defendant was in his automobile. She got in the automobile with him, sitting beside him, and he drove the automobile southeast of Atlanta towards Constitution. An automobile containing two county policemen approached and passed the defendant's automobile; and seeing what looked like to them some one duck down in defendant's car, they turned around and overtook the defendant's car, which stopped, and the girl had got out of it. She appeared to be scared and trembling when they came up. After some questioning, she told the policeman that the defendant had patted her legs but did not do anything else. The police took the defendant and the girl to Lakewood Heights, telephoned for their lieutenant, and while awaiting his arrival one of the police stated to the girl that she had not told them the truth, and she replied, 'About what?' This conversation was in the defendant's hearing. The policeman again said, 'You didn't tell me the truth.' The girl said, 'Why?' The policeman then said, 'You didn't tell me the truth about this negro, did you?' The girl then said, 'What did he say?' The policeman replied, 'Never mind about what he said, I want to know what you have got to say about it.' Thereupon the girl stated, 'He said he had something to do with me, didn't he?' There was evidence as to finding human semen on certain pipes near the sink in the meathouse. Several witnesses testified as to the previous good character of the defendant. Witnesses for the State testified as to his bad character, freshness with white girls, living with a negro woman not his wife; and the like. The defendant made a statement in which he protested his innocence, and denied going into the meathouse with the girl. Other witnesses corroborated the girl's testimony in this regard, and as to other circumstances. The jury returned a verdict finding the defendant guilty, and he was sentenced to death. He moved for a new trial on the general grounds, and on special grounds which will be dealt with hereinafter. The judge overruled the motion for new trial, and the defendant excepted.
1. A new trial is not required because the court denied the defendant's application for a continuance of the trial, especially in view of the counter-showing by the State. No witness was sworn on the application for a continuance, which was based on the statement of counsel for the defendant, Mr. Jesse Simmons, that he was physically unfit to go to trial. Counsel presented to the court a certificate of a physician, which was unsworn and not substantive proof. This certificate went no further than to say that counsel 'is unable to try a case today.' No temporary postponement of the trial was sought. It appears from the counter-showing that both Mr. Bowers and Mr. Avary, associate counsel with Mr. Simmons, were present in court and representing the defendant, and no reason was shown to the court why both of them were not sufficiently qualified to proceed with the trial. Under the facts it does not appear that the defendant was deprived of his constitutional right to the privilege and benefit of counsel, in violation of that provision of the Constitution of this State which insures that 'every person charged with an offense against the laws of this State shall have the privilege and benefit of counsel.' Code, § 2-105 (Const. art. 1, § 1, par. 5). See Trammell v. State, 184 Ga. 711, 189 S.E. 529.
2. The defendant assigns as error the failure of the court to instruct the jury on the law of circumstantial evidence. There was no request for such instruction. The conviction did not depend entirely on circumstantial evidence. There was some direct evidence on all the essential elements of the offense for which the defendant was tried, including corroboration of the female. Therefore failure of the court to charge on the law of circumstantial evidence is not cause for a new trial in this case. McElroy v. State, 125 Ga. 37, 53 S.E. 759; Wilson v. State, 152 Ga. 337, 110 S.E. 8; Haden v. State, 176 Ga. 304, 312(17), 168 S.E. 272; Harris v. State, 178 Ga. 746(2), 174 S.E. 240.
For the same reasons, the grounds are not sustained in which the defendant complains of the failure of the court, without request, to define to the jury the meaning of circumstantial evidence, and to instruct them on the law of circumstantial evidence as set forth in the Code, §§ 38-102, 38-109. See Brady v. State, 159 Ga. 469, 126 S.E. 250; Strickland v. State, 167 Ga. 452, 454, 145 S.E. 879, and cit.; Starnes v. State, 45 Ga.App. 238(2), 164 S.E. 89.
3. It has been time and again held by this court and the Court of Appeals that the judge need not attempt to define reasonable doubt. Bell v. State, 148 Ga. 352, 96 S.E. 861; Jordan v. State, 16 Ga.App. 393, 400, 85 S.E. 455, and cit.; 9 Cum.Dig. 871. Consequently the assignment that the court erred in failing to instruct the jury as to the meaning of 'reasonable doubt' is without merit. See Battle v. State, 103 Ga. 53(2), 29 S.E. 491.
4. The defendant was convicted of the rape of a female under fourteen years of age. While the indictment charged that he had carnal knowledge of her forcibly and against her will, and did not state her age, the evidence showed that the crime was accomplished with her consent and that she was under fourteen years of age at the time. Echols v. State, 153 Ga. 857, 113 S.E. 170. A child under fourteen years is legally incapable of consenting to illicit sexual intercourse. Todd v. State, 25 Ga.App. 411, 103 S.E. 496.
In such cases the presumption of the law is that a female under that age will not voluntarily consent to fornication; and this presumption supplies the force essential to the commission of the crime of rape. Holland v. State, 161 Ga. 492 131 S.E. 503; Ollis v. State, 44 Ga.App. 793, 163 S.E. 309. Proof of force and resistance is therefore unessential. 52 C.J. 1095. Also, the age of the girl is sufficiently proved when she testifies positively as to the same. Where the female child testifies that she was of a particular age below the age of consent, which is not disputed, this proof of age, taken in connection with her appearance on the witness stand, is sufficient. While the evidence...
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