Opinion
34476.
DECIDED FEBRUARY 13, 1953.
Sodomy; from Cobb Superior Court — Judge Brooke. November 15, 1952.
James R. Venable, Charles Nolen, John L. Respess Jr., for plaintiff in error.
James T. Manning, Solicitor-General, contra.
1. Every ground of a motion for a new trial which contains the recital of an affirmative fact must be verified or approved by the trial judge or it will not be considered; and where the trial judge specifically refuses his approval of a given ground of a motion for a new trial, such ground will not be considered by this court. Yancy v. State, 173 Ga. 685 (3) ( 160 S.E. 867).
2. An allegation in an indictment for sodomy that the defendant is "a man of more than twenty-one years of age" is surplusage and need not be proved.
3-5. Special grounds 1 through 12 are not meritorious for the reasons stated in the opinion.
6. The evidence authorized the verdicts.
DECIDED FEBRUARY 13, 1953.
In an indictment in two counts, George L. Clardy was charged in court 1 with sodomy, in that he "did unlawfully, then and there being a man more than 21 years of age, have carnal knowledge and connection against the order of nature with . . a female under sixteen years of age"; and in count 2 he was charged with a violation of Code (Ann. Supp.) § 26-1301A, in that he "did unlawfully then and there commit lewd and lascivious acts upon and with the body and that part of said body known as the female organs of . . a minor child under the age of 16 years, with the intent of arousing, appealing to, and gratifying the lusts and passions and sexual desires of the said accused."
Upon the trial the jury returned a verdict finding the defendant guilty under both counts of the indictment, and fixing his punishment at from ten to fifteen years in the penitentiary for sodomy, and at from one to three years for molestation of a minor child.
The defendant's motion for a new trial, based upon the usual general grounds and ten special grounds (numbered 4 through 13), was overruled and the defendant excepted.
In special ground 1 (numbered 4), error is assigned upon the following except from the charge of the court to the jury: "The defendant enters upon the trial of the case with the presumption of innocence in his favor and that presumption remains with him until the State shall overcome it by the introduction of testimony in your presence and hearing sufficient to convince your minds as to the guilt of the accused beyond a reasonable doubt." The grounds of objections to this excerpt from the charge are: (a) it is not an accurate, complete, and full statement of the law and was not adjusted to the issues of the case; (b) it confused and misled the jury; (c) it confused and misled the jury into considering the "presumption of innocence" to be synonymous with reasonable doubt; (d) it misled and confused the jury as to the true and correct rule relative to this presumption in that the jury were thereby permitted to consider such presumption as a prima facie presumption only, which would vanish upon the introduction by the State of evidence tending to show the defendant's guilt beyond a reasonable doubt without regard to the fact that such presumption is to have the weight of evidence and to be considered throughout the trial as evidence in the defendant's favor; (e) the jury were given the impression that where the State introduced some evidence tending to show the defendant's guilt, the presumption of innocence would disappear; (f) the court nowhere instructed the jury that the burden was on the State to prove the defendant's guilt beyond a reasonable doubt to the jury's satisfaction; and (g) the charge was argumentative, not adjusted to the issues, and incorrect as a matter of law and incomplete.
In special ground 2 (numbered 5) error is assigned upon the trial court's failure, without a request, to charge the following: "The presumption of innocence, gentlemen, remains with this defendant throughout his trial and it is to be considered by you as evidence in his behalf and in determining whether there has been evidence adduced which convinces you beyond a reasonable doubt that this defendant is guilty, you should take into consideration as a fact in his favor that the defendant is presumed to be innocent," upon the ground that the principle is not elsewhere covered in the charge.
In special ground 3 (numbered 6), error is assigned upon the court's failure, without a request, to give the following instruction: "The presumption of innocence remained with this defendant and in his behalf in the nature of evidence until overcome by evidence which satisfies your minds beyond a reasonable doubt as to his guilt," upon the ground that such principle was not covered elsewhere in the charge given.
In special ground 4 (numbered 7), error is assigned upon the court's failure to charge, without request, the following principle: "Gentlemen of the jury, the presumption of innocence with which the defendant enters upon this trial of this case, and which is a fundamental doctrine of American criminal jurisprudence, remains with him in the nature of evidence in his behalf throughout the progress of the trial, until it be overcome in your minds from what is adduced before you upon the witness stand under the rules of law as given you by the court," upon the ground that such failure to charge deprived the defendant of the benefit of having the jury consider such presumption as evidence in his behalf.
In special ground 5 (numbered 8), error is assigned upon the court's failure, without request, to charge the following principle: "The presumption of innocence, gentlemen, with which this defendant entered upon his trial, challenges the truth and credibility of all evidence offered by the State against him and challenges the truth and credibility of. . [the alleged victim], and such presumption can be overcome only by a verdict of the jury that sufficient evidence has been introduced to overcome the same," upon the ground that such principle was not covered by the charge as a whole and deprived the defendant of the full benefit of the presumption of innocence afforded him under our system of criminal jurisprudence.
In special ground 6 (numbered 9) error is assigned upon the following except from the charge of the court: "And a reasonable doubt means just what that term implies. It is the doubt of a fairminded, impartial juror, who is honestly seeking the truth, and one for which he can give a reason. It is a doubt that may grow out of the evidence, or a lack of evidence, or a conflict in the evidence, or a conflict between the evidence and the defendant's statement, or it may arise solely from the defendant's statement. If you have such a doubt, it is your duty under the law to give the defendant the benefit of it and acquit him." The grounds of objections to this excerpt are: (a) it is an incorrect statement of the law and is incomplete and inaccurate as a definition of "reasonable doubt"; (b) it tended to confuse and mislead the jury; (c) it was given in such immediate connection with the instructions on the presumption of innocence that it tended to deprive the defendant of the benefit of the presumption of innocence, and mislead the jury to believe that "presumption of innocence" is synonymous with "reasonable doubt"; (d) it is incorrect and not in the language of Code § 38-110; (e) it nullified the presumption of innocence; (f) the use of the words "lack of evidence" tended to impress the jury that the defendant should produce evidence to prove or show his innocence; and (g) it should have been charged in that connection that such doubt might arise from a consideration of the presumption of innocence as a fact in the defendant's favor, from a consideration of its conflict with the evidence for the State, or could arise solely from such presumption.
In special ground 7 (numbered 10), error is assigned upon the court's failure to charge, without request, the following: Reasonable doubt is a doubt which may grow out of evidence, or lack of evidence, or a conflict in the evidence, or a conflict between the evidence and the defendant's statement, or it may arise solely from the presumption in favor of the defendant that he is presumed to be innocent or from the defendant's statement to the court and jury, and from the conflict between the presumption of innocence and the evidence, or it may arise solely from the presumption of innocence in favor of the defendant or from his statement to the court and jury," upon the ground that the principles there enunciated were not covered in the general charge.
In special ground 8 (numbered 11), error is assigned upon the court's failure to charge, without request, the following: "While the competency of a child of tender years to testify as a witness is to be determined by me, the credibility of such child as a witness is to be determined by you, gentlemen, and in determining whether or not you will credit such testimony you may take into consideration the age of the child, her background and surroundings, her understanding or lack of understanding as to the nature of an oath, as developed upon her examination before you, and you may consider the reasonableness of her testimony and of the occurrence described by her as having taken place."
In special ground 9 (numbered 12) it is alleged that there is a fatal variance between the allegations of the indictment and the proof, in that the indictment, in count 1, charged that the defendant was a man of more than 21 years, and that there is no evidence whatsoever tending to show the age of the defendant.
The trial court refused to approve as true the allegations of special ground 10 (numbered 13).
1. Headnote 1 requires no elaboration, and for the reason there stated special ground 10 (numbered 13) is not considered.
2. In an indictment for sodomy, under the provisions of Code § 26-5901, it is not necessary, as a part of the description of the offense, to state the age of the accused; and, where in such a case the indictment does in fact state that the defendant is a "man of more than 21 years," such allegation is surplusage and need not be proved. See, in this connection, Murphy v. State, 67 Ga. App. 626 ( 21 S.E.2d 454). Nor was proof of the defendant's age necessary to show his capacity for committing a crime. Broadnax v. State, 100 Ga. 62 ( 25 S.E. 844). Special ground 9 is without merit.
3. In instructing the jury the court charged the following on the credibility of the witnesses: "You are made by law the exclusive judges as to the credibility of the witnesses. In passing upon their credibility you may take into consideration all of the evidence, facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their interest or want of interest in the case, their means and opportunity for knowing the facts about which they testify, the probability or improbability of their testimony, and also their personal credibility so far as that appears during the trial"; and, as this is a full and fair charge upon the subject of the credibility of witnesses, the court's failure to charge the jury more fully and to specifically relate such charge to the facts of the case is no ground for the grant of a new trial where no timely written request so to charge was made. Richardson v. State, 141 Ga. 782 ( 82 S.E. 134); Turner v. State, 139 Ga. 593 ( 77 S.E. 828), and citations. Special ground 8 is not meritorious.
4. The charge of the court on "reasonable doubt," complained of in special ground 6, states the correct definition of reasonable doubt; and if the defendant had wished a more elaborate charge on the subject, he should have submitted a timely written request to charge according to the language set out in special ground 7. Allen v. State, 194 Ga. 430, 434 ( 22 S.E.2d 65). These two grounds are not meritorious.
5. The court's charge complained of in special ground 1 on the subject of the presumption of the defendant's innocence was full and eminently fair; and had the defendant wished the more elaborate charges on the subject contained in special grounds 2, 3, 4, and 5, a timely written request so to charge should have been made. Solomon v. State, 44 Ga. App. 755 ( 162 S.E. 863). These grounds are not meritorious.
6. The defendant's alleged victim gave in detail evidence from which the jury was authorized to find that the defendant was guilty of both sodomy and a violation of Code (Ann. Supp.) § 26-1301A. The court passed upon her competency to testify, and the jury determined her credibility; and however beneficent it might be to require that the testimony of children of tender years be corroborated, we know of no statute or decision in the State which makes such a requirement in criminal prosecutions for offenses of the nature here charged. The evidence authorized the verdict.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.