Wynne v. State

• Decision Date: 16 July 1976
• Docket Number: No. 2,No. 52403,52403,2
• Citation: 139 Ga.App. 355,228 S.E.2d 378
• Parties: J. C. WYNNE v. The STATE
• Court: Georgia Court of Appeals

Page 378

228 S.E.2d 378

139 Ga.App. 355

J. C. WYNNE v. The STATE.

No. 52403.

Court of Appeals of Georgia, Division No. 2.

July 16, 1976.

Paul E. Cormier, Leonard N. Steinberg, Forest Park, for appellant.

C. B. Holcomb, Dist. Atty., Frank C. Mills, III, Asst. Dist. Atty., Canton, for appellee.

McMURRAY, Judge.

Defendant was indicted for statutory rape, incest and sodomy in two indictments containing three counts each for these offenses committed upon his stepdaughters. He was convicted on all counts and sentenced to serve 12 years in the penitentiary, four years consecutively as to three counts in one indictment; and nine years on probation, three years consecutively on each count of the other indictment, upon completion of the first sentence. Defendant appeals. Held:

1. Defendant was married to the mother of the two girls and had sexual relations, including sexual intercourse and oral sex (sodomy) on numerous occasions (two or three times a week) continuously with his stepdaughters from age 12 and before each female reached 14 years of age. The term 'sexual intercourse' was not used by the witnesses to describe every occasion of sexual activity. However, the terms used by the witnesses such as, 'have intercourse with me,' 'sexual relations,' 'sexual affair,' 'putting his finger in me,' 'privates,' 'private parts,' and 'pain and bleeding associated with these sexual relations,' being sexual relations other than putting his finger in 'private parts,' was sufficient evidence to establish the acts of sexual intercourse and incest to the satisfaction of the jury. Acts of sodomy were also sufficiently established by testimony that defendant put his mouth on 'private parts' and 'vagina.' See Stonaker v. State, 134 Ga.App. 123(1), 213 S.E.2d 506, inasmuch as Division One of that opinion was not reversed by State v. Stonaker, 236 Ga. 1, 222 S.E.2d 354.

2. Slight circumstances may be sufficient corroboration of the crime of rape in addition to the testimony of the female in order to convict. See Smith v. State, 161 Ga. 421, 423(1), 131 S.E. 163; Strickland v. State,207 Ga. 284, 285(3), 61 S.E.2d 118; Morgan v. State, 229 Ga. 532(1),192 S.E.2d 338.

Evidence of similar crimes which have a logical connection may be offered in evidence to show plan, scheme, bent of mind and course of conduct. Such evidence has also been recognized as corroboration evidence. See Overton v. State, 230 Ga. 830, 834(4), 199 S.E.2d 205; Barkley v. State, 190 Ga. 641(2), 10 S.E.2d 32. The testimony of the two victims thus corroborated the instances of rape as to the other.

One of the victims also told her boyfriend of the incidents. He testified that he confronted the defendant who then made certain admissions to him in regard to the illicit sexual relations with this victim. The other victim testified she had reported the illicit relations to her boyfriend, but he was not offered as a witness.

Ultimately, however, the question of whether the testimony of the female has been corroborated is one solely for the determination of a jury under proper instruction of the court. Suber v. State, 176 Ga. 525(2a), 168 S.E. 585; Wright v. State, 184 Ga. 62, 69(5), 190 S.E. 663; Dorsey v. State, 204 Ga. 345(1), 347, 49 S.E.2d 886; Strickland v. State, supra. There was sufficient evidence of corroboration for the jury to determine that the offenses of statutory rape had been corroborated as to each victim.

3. 'No party shall be required to testify as to any matter which may criminate or tend to criminate himself, . . . or which shall tend to bring infamy or disgrace or public contempt upon himself or any member of his family.' Code § 38-1205. See also Code § 38-1102. This privilege applies also to witnesses. Code § 38-1711. cases as to crimination of a witness have held that when a question is propounded it is for the court to consider and decide whether any direct answer to it can implicate the witness; but if a direct answer will criminate the witness, it is for the witness alone to determine whether or not he should testify. If the witness then says under oath that his answer would criminate himself, the 'court can demand no other testimony of the fact.' See Empire Life Ins. Co. v. Einstein, 12 Ga.App. 380, 384, 77 S.E. 209, 211; Bass v. Bass, 222 Ga. 378, 385, 149 S.E.2d 818; Interstate Life & Acc. Ins. Co. v. Wilmont, 123 Ga.App. 337, 338(4), 180 S.E.2d 913, and cases cited. Of course, the witness may not stand moot, but must testify that the answer would criminate or tend to criminate himself, work a forfeiture of his estate, or tend to bring infamy or disgrace or public contempt upon himself or any member of his family as the case may be, otherwise he would be in contempt. See Pledger v. State, 77 Ga. 242, 3 S.E. 320. Compare Mallin v. Mallin, 226 Ga. 628, 176 S.E.2d 709; Mallin v. Mallin, 227 Ga. 833, 834(1), 183 S.E.2d 377.

A trial judge should not attempt to intimidate a witness to testify in behalf of the State, either in or out of the presence of the jury. See Benton v. State, 58 Ga.App. 634(4), 199 S.E. 562. But the trial judge has a wide discretion in controlling the trial of the case, and witnesses, properly subpoenaed, are under an obligation to further the administration of justice by appearing and testifying as to any relevant facts within their knowledge. 97 C.J.S. Witnesses § 14, p. 361.

When the witnesses here refused to testify stating their privilege not to testify because it would tend to incriminate them or to disgrace them and their family, the court then instructed them that since the crime had been committed upon the witnesses they could not refuse to testify, and if they did refuse the court would hold them in contempt and incarcerate them in the common jail. Apparently this ruling was based on Brooks v. State, 233 Ga. 524, 527(2), 212 S.E.2d 355, wherein the court held a brother-in-law was not entitled to refuse to testify about a crime involving his wife's brother. The facts must directly involve disgrace and not facts merely tending to disgrace indirectly. We can think of no greater disgrace to the witness than that which they were forced to testify under duress, hence the lower court was in error in holding that this was only a collateral matter, and the witness had to testify under threat of contempt. The case of Brooks v. State, supra, is not controlling here.

But the witnesses did not persevere in availing themselves of the privilege given them by the law and proceeded to testify. The testimony given by them was extremely damaging to the defendant, and, in fact, a primar facie case would not have been made against the defendant but for their testimony. However, we do not see how the threat of contempt and to be incarcerated in the common jail could have inured to the benefit of the defendant in this instance, even if the court was in error in requiring the witnesses to testify against the defendant. Had the witnesses refused to testify and thereafter been cited for contempt and incarcerated, the court would have committed reversible error as to holding them in contempt. But counsel have...