Opinion
13410.
SEPTEMBER 25, 1940.
Rape. Before Judge Hawkins. Cherokee superior court. April 20, 1940.
John F. Echols and R. E. Kirby, for plaintiffs in error.
Ellis G. Arnall, attorney-general, H. G. Vandiviere, solicitor-general, E. J. Clower and C. E. Gregory, Jr., assistant attorneys-general, contra.
1. Where the testimony of the injured female makes a case of rape, the jury is the sole judge of her credibility; and although she made no outcry and failed for nine days to make known the fact that she had been attacked, the jury was authorized to credit her testimony despite these circumstances, especially in view of the facts and circumstances detailed in the opinion.
2. While the injured female was under cross-examination she began to cry, and the court ordered the trial to suspend, and that the witness be carried to her mother. It was not abuse of discretion to overrule a motion to declare a mistrial based upon this fact.
3. Where a witness on cross-examination makes answers not responsive to the questions, but no request is made of the court to require responsive answers, no objections are made, and no effort is otherwise made during the trial to avoid any injury such answers might have inflicted, a ground of a motion for a new trial complaining of such conduct of the witness is without merit.
4. A ground of a motion for new trial which merely recites that counsel for defendants had a right to thoroughly cross-examine the injured female, and that her continuous crying and refusal to answer questions handicapped counsel in making a successful defense, but showing no ruling of the court, and no appeal to the court for aid in obtaining answers from the witness, is without merit.
5. The fact that a defendant is in custody of the sheriff when he makes a confession does not render such confession inadmissible against him. Testimony of the sheriff that the confession was made freely and voluntarily, and without threat or hope of reward, was sufficient foundation for its introduction in evidence in rebuttal of defendant's statement that he was innocent.
No. 13410. SEPTEMBER 25, 1940.
Buman (alias Boots) Boling, Eugene Elliott, and Ted Redd were indicted and convicted of rape, the jury recommending mercy and fixing the penalty of Boling at from three to five years, and the penalty of Elliott and Redd at one year. Elliott and Redd made a motion for a new trial, which was denied, and they excepted.
The alleged injured female testified, that she was seventeen years old at the time of the alleged crime; that on October 10, 1939, she eloped with the defendant Boling, and they were married; that she left home with Boling a few days before their marriage, and stayed with him in Forsyth County, Georgia, for a period of fifty-four days after marriage; that she and Boling left Forsyth County in a car with Elliott, and after traveling a short distance they picked up Redd; that shortly thereafter her husband told her that she was going to have to have sexual intercourse with the other boys; that she protested that she would not, and began crying, whereupon her husband said, "None of that damn crying now;" that thereafter the car was stopped on the side of the road in Cherokee County, where her husband first attempted to pull her out of the car, then later walked to the back of the car and called her, and she went to see what he wanted; that he told her he had hired the boys to take them over there, and she would have to pay them in that way, and she told him she had rather die than do it; that her husband said, "That ain't nothing; we are married, and them other boys said they wouldn't tell anybody;" that the other boys were present and heard these statements; that she leaned against the fender of the automobile and started crying; that Elliott caught her by one arm and Boling by the other, and by pulling carried her across the gully; that after they had got out of the gully Elliott told Boling that he could manage it, and Boling stood there on the bank of the road while Elliott pulled her out into the woods out of sight of the road; that she caught hold of a pine tree, but Elliott got her loose, pushed her to the ground, and had sexual intercourse with her; that she tried to get loose, tried to push him away, and was crying; that when he had finished he went back to the car and she leaned against a tree crying; that soon afterward Redd came and shoved her down and had sexual intercourse with her, although she tried to get away from him and tried to push him away, after which she stood there crying until Boling, her husband, came and commanded her to get in the automobile, which she did; that they all rode in the automobile to Deen Hembree's, where they stopped, and Elliott and Redd turned and went back; that after this stop she and her husband went to the home of Will Gayton, a distance of about a mile and a half, and ate supper; that she and her husband remained at Gayton's for a week thereafter, the crime having been committed on the third Monday in November, 1939; that the witness's mother visited her for two or three hours on Thanksgiving, but she told no one what had happened to her until Wednesday after Thanksgiving, when she told her mother, who in turn told her father; that her father told her, before she eloped with Boling, that if she left with him she could be his "little whore," and should never be permitted to return to his home, and when she went home on Wednesday after Thanksgiving her father told her that she could not remain there, but after he learned what had happened she was permitted to remain, and the prosecution was instituted.
The father testified, that she went with him and pointed out the place where she said the attack had been made upon her; that he saw car tracks to the side of the road, and saw on the bank a woman's track as well as a man's track; and that it had recently rained and there was pine straw in the woods, and he could not see any sign, but she pointed out the place in the woods where she said she was attacked. Arthur Collett corroborated the testimony of the father about a woman's track and men's tracks, as well as seeing where an automobile had pulled out by the side of the road. Rufe Hembree testified that he was at his father's house when the defendants and Boling's wife stopped there shortly after dark, and that he did not notice the girl crying, but that she had been crying and was "snubbing." The mother testified, that the daughter told her of this attack after being in her home nearly two days; that her daughter did not tell her about it during her visit on Thanksgiving Day; that neither the daughter nor her husband acted right — neither would look at her or talk much; and that after witness told her husband he went and got warrants for the defendants. Sheriff Lee Spear testified, that he had the defendant Elliott arrested in Cumming, and brought him to the jail in Canton; that on the way from Cumming to Canton the defendant freely and voluntarily, without promise of reward and without threat, asked witness what he was charged with, and after being informed that the charge was rape, said that he did not see how they could make rape out of it, — that they were all there together and stopped by the side of the road, that he went down in the woods with the Boling woman and had sexual intercourse with her, the other boy staying up at the car, and that when he got back Redd went down there, but he did not know whether Redd had intercourse with her or not.
Each of the defendants made a statement, and Boling and Elliott denied that the car stopped at any time. Boling stated that he paid two dollars, which was all that he had, for the transportation; and that he had promised Elliott five dollars. Redd stated that Boling said, "I promised you five dollars, but I ain't got but two, so I won't ask you to go no further;" and that they then turned around and went back. Elliott stated: "He promised me five dollars before we left, but when we got up there he said he did not have but two. . . And gentlemen of the jury, I am not guilty."
1. Ground 4 of the amendment to the motion for new trial is but a further argument of the general grounds, and these will all be treated together. The testimony of the alleged injured female makes a case of rape as charged in the indictment. She is corroborated by one witness who testified that shortly thereafter her appearance showed that she had been crying, by the testimony of her father and another witness that tracks were observed by them at the place where she said the car had stopped, and also by the testimony of the sheriff as to the admissions by the defendant Elliott. With this testimony for the State sustaining the verdict of guilty, whether the circumstances and evidence produced by the defendants were sufficient to discredit or contradict the State's evidence was a matter solely and exclusively for the determination of the jury. Code, § 38-1805; Merritt v. State, 190 Ga. 81 ( 8 S.E.2d 386). It is true that the female made no outcry at the time of the attack, and disclosed it for the first time to her mother nine days thereafter, and that these circumstances unexplained would be strong evidence for the consideration of the jury on the question of her credibility. It is impossible to photograph every act and circumstance occurring upon the trial for the observation and consideration of the jury, that they may be reviewed by this court; but the jury is entitled to consider any and all circumstances in reaching its verdict. The jury might properly have considered the question as to whom she might have addressed a plea for help while being attacked, when she knew that her father had told her she could never return to his home, and her husband, the man from whom she had a right to expect protection, was there aiding and abetting her attackers. The record shows that she was only seventeen years of age, while her husband was approximately thirty years old. This difference in age doubtless enabled him completely to dominate her, and his own conduct, as related by her, made it impossible for her to expect any assistance at his hands. The jury would have been authorized to consider that her silence for nine days was explained by the fact that she was under the constant domination of her husband, and was doubtless without hope of being able to return to her father. It can not be said that these circumstances were sufficient to demand that the jury disregard her testimony, which was corroborated. Compare Bennett v. State, 102 Ga. 656 ( 29 S.E. 918); Towns v. State, 149 Ga. 613 ( 101 S.E. 678); Walker v. State, 151 Ga. 341 ( 106 S.E. 547); Wilkie v. State, 159 Ga. 559 ( 126 S.E. 283); Suber v. State, 176 Ga. 525 ( 168 S.E. 585); Annunciatio v. State, 176 Ga. 787 ( 169 S.E. 3). These grounds of the motion are without merit.
2. Special ground 1 complains of the action of the judge in excusing the alleged injured female while under cross-examination and while crying, and directing that she be carried out to her mother. Defendants' counsel asked the witness if Eugene Elliott pulled her legs apart when he attempted to rape her while she was on the ground. Thereupon she began crying and continued to cry for about five minutes, and the examination could not proceed; whereupon the court directed that she be carried out to her mother. Because of this action on the part of the court the defendants moved that a mistrial be declared, which was refused, and error is assigned. It is contended that the emotional outburst of the witness prejudiced the jury, and that the court's instruction that she be taken out to her mother prejudiced the jury, in that it recalled to the jurors' minds their own childhood days and the sympathy and understanding of a mother for a child that was hurt or wronged. We do not think that it is contended that a show of emotion on the part of a witness demands a mistrial. Such a rule would paralyze court procedure, and might easily prevent the court from ever rendering judgment. Nor can this court say that the judge committed error by having the witness carried out to her mother, since her emotions had made it impossible for the trial to proceed. There is nothing in the words of the court that would tend to prejudice the jury either way in the case. The language used is a simple, fair, and impartial instruction which in the judgment of the trial court was necessary under the circumstances. In the matter of declaring a mistrial based upon such grounds, the trial court had a broad discretion, and it does not appear that this discretion was abused. Compare Darden v. State, 171 Ga. 848 (6) ( 157 S.E. 48); Esa v. State, 19 Ga. App. 14 (3) ( 90 S.E. 732); Hudson v. Devlin, 28 Ga. App. 458 (6) ( 111 S.E. 693).
3. Special ground 2 complains because the female, while on cross-examination, when asked the question, "What was in the note that your father read that was sent to you on the night you ran away with Boots Boling, the note that Boots Boling sent you?" replied, "That is none of your business." Complaint is also made because, in answer to another question, this witness replied, "As to what I said when Eugene Elliott got on top of me — if that is the best kind of talking you can do, you can just shut your mouth." This ground does not show that any objection was made to the statements or attitude of the witness, or that any appeal was made to the court to require her to give proper answers, or in what manner the questions were material. From all that appears from this ground the defendants elected to accept the responses and take chances on receiving a favorable verdict; and having so elected, they will not now be heard to complain. Nor was any ruling of the court invoked; and therefore this ground presents no ruling for review. Ramsey v. State, 92 Ga. 53 ( 17 S.E. 613); Washington v. State, 124 Ga. 423 (10) ( 52 S.E. 910); Hendrix v. State, 173 Ga. 419 ( 160 S.E. 614). There is no merit in this ground.
4. Special ground 3 is as follows: "Movants contend that they were charged with a grave and heinous crime, and that their counsel had the right to a thorough and sifting examination of the alleged injured female, and that her continuous crying and refusal to answer questions while on cross-examination, and her repeated emotional outbursts, handicapped counsel for the defendants in making a successful defense; and they contend that a new trial should be granted on this ground." This ground fails to show that assistance of the court was requested, that any ruling of the court was invoked, or that they were in any wise limited by any ruling of the court in their right to cross-examine the witness. Having thus proceeded to verdict without making such complaint, the defendants took their chances on a verdict of acquittal; and the complaint is without merit. Echols v. State, 153 Ga. 857 (2) ( 113 S.E. 170).
5. The remaining ground is an objection to the testimony of the sheriff, relating to the admission made by the defendant Elliott. The admission of this testimony is assigned as error on the ground that a "confession while in custody is not admissible, and that this evidence was not admissible in rebuttal." The proper foundation for the admission of this testimony was laid when the sheriff testified that the statement was made freely and voluntarily, without threat or hope of reward; and it was in rebuttal of the statement of defendant Elliott that he was not guilty and that the car did not stop during the trip. Bradberry v. State, 170 Ga. 859 (4) ( 154 S.E. 344); Simmons v. State, 181 Ga. 761 (4, 5) ( 184 S.E. 291); Worthy v. State, 184 Ga. 402 (5) ( 191 S.E. 457). There is no merit in this ground.
Judgment affirmed. All the Justices concur.