Opinion
31688.
DECIDED DECEMBER 4, 1947.
Assault with intent to rape; from Elbert Superior Court — Judge Edwards. May 24, 1947.
J. T. Sisk, for plaintiff in error.
R. Howard Gordon, Solicitor-General, Howard B. Payne, contra.
1. This is the second appearance of this case in this court. On the first trial J. W. Parker was convicted of an assault with intent to rape. This court reversed the judgment of the trial judge on the ground that the evidence was not sufficient to authorize the verdict, and pointed out that as a matter of law the evidence failed to show beyond a reasonable doubt, to the exclusion of every other reasonable hypothesis, that the attack was made with the intent to commit rape. Parker v. State, 72 Ga. App. 302 ( 33 S.E.2d 739).
2. "When a case is brought to this court and the judgment of the trial court is reversed, all questions as to pleadings and the effect of evidence adjudicated by this court are binding as the law of the case on this court and, on a second trial of the case, on the court below, unless additional pleadings and evidence prevail to change such adjudications." Albany Coca-Cola Bottling Co. v. Shiver, 67 Ga. App. 359 (1) ( 20 S.E.2d, 181).
3. In addition to the evidence presented at the first trial, the prosecutrix testified in effect that she had seen the defendant peeping in the window of her bedroom when she was in bed; that the defendant, accompanied by his wife, went into the store at which the prosecutrix was employed and leered at her; and that at one time she was followed along a lonely path by a person who came from the defendant's house and who was about the same size as the defendant.
4. Even with the additional evidence we think the jury were not authorized to find that the attack was made with the intent to commit rape. The trial judge erred in overruling the defendant's motion for new trial.
Judgment reversed. Gardner and Townsend, JJ., concur.