Harper v. State

Full title: HARPER v. THE STATE

Court: Court of Appeals of Georgia

Date published: Nov 7, 1946

40 S.E.2d 222 (Ga. Ct. App. 1946)

40 S.E.2d 222

Opinion

31380.

DECIDED NOVEMBER 7, 1946.

Assault with intent to rape; from Fulton Superior Court — Judge Hooper. June 11, 1946.

Hudson LeCraw, for plaintiff in error.

E. E. Andrews, Solicitor-General, Durwood T. Pye, J. R. Parham, contra.

1. The jury were authorized to find that the defendant made the attack upon the female with the intent to have carnal knowledge of her forcibly and against her will.

2. The special assignment of error does not require a reversal, for the reasons set forth in division 2 of the opinion.

DECIDED NOVEMBER 7, 1946.

The plaintiff in error, D. L. Harper, a negro boy about fifteen years old, was convicted of assault with intent to rape a white married woman. He filed his amended motion for a new trial, which was overruled, and assigns error on this judgment. The material evidence, briefly, shows: The lady alighted from a Walker-West View street car near West View Cemetery, in Fulton County, Georgia, for the purpose of walking six or seven blocks to her home on Florida Avenue, late at night. She was overtaken and passed by the defendant, who walked ahead for several blocks to a negro store or restaurant. There were no people on the streets and no lights. The negro began walking beside the lady and engaged in a conversation with her with reference to whether or not she had missed the bus and if she knew some of the parties whose names he mentioned, whereupon the lady walked out into the street as far as she could without getting into the line of passing cars. Then it was that the defendant threw his arms around her and stated that he wanted to have intercourse with her. The lady unzipped her pocketbook while he still had his arms about her and while he was scuffling with her, and told him that if he did not leave her alone she would blow his brains out. She threatened him with policemen and threatened to call someone passing in cars. The negro then released her, and fled, going behind a florist shop, and disappeared. The lady immediately reported the incident to the peace officers. Dogs were summoned and put on the trial of the defendant. He was run down and caught in his home some 600 or 700 yards away.

When arrested the defendant told the officers, "I didn't use any weapons." The officer replied: "Nobody said anything about you using or having a weapon. What is the matter with you anyway." The defendant replied, "I just wanted to have this woman." The officer inquired of him what he meant by the statement, "Wanting to have her," and he said those are just words that colored folks use. The defendant in his statement admitted that he had passed the lady and looked around, and contended that it was dark and that he thought it was someone he knew. He also stated that there was a street light in front of the store. He related a conversation which he had with the lady concerning where she had been and about her getting a license to carry a pistol. He further said: "And I guess I cracked a joke and laughed. I said `how about that.'" He also admitted that she told him he had better go on down the road before she blew his brains out. He further stated that she inquired of him what his name was and he told her "Parker," and it was later found out that his name was Harper.

GARDNER, J.

1. As to the general grounds, the distinguished counsel argue enthusiastically that the evidence is insufficient to show that the defendant committed an assault and battery upon the lady with the purpose of having carnal knowledge of her forcibly and against her will. It is further contended that the evidence is equally as strong that he committed the assault and battery for the purpose of obtaining the consent of the lady or for some other purpose undisclosed. In support of this contention, counsel cite many cases wherein this court and the Supreme Court have reversed convictions for assault with intent to rape because the evidence did not show beyond a reasonable doubt what the intent of the defendant was in making the assault or attack upon the female. Those cases are: Gaines v. State, 7 Ga. App. 397; Dorsey v. State, 108 Ga. 477; Parker v. State, 72 Ga. App. 302; Scott v. State, 63 Ga. App. 353; Borders v. State, 61 Ga. App. 573; Little v. State, 42 Ga. App. 222; Pauldo v. State, 29 Ga. App. 389; Johnson v. State, 63 Ga. 356. We have cited these cases in the order named in the brief of counsel for the defendant. We might say that Dorsey v. State, supra, is a leading case and is more often quoted than any others so far as our information goes. In division 1 of that opinion the Supreme Court lays down three elements of this offense: first, an assault; second, an intent to have carnal knowledge of the female; third, a purpose to carry into effect the intent to have carnal knowledge of the female with force and against her will. During the course of the opinion the Supreme Court said: "The main point upon which we place our judgment is, that the evidence does not show an intention on the part of the accused to have carnal knowledge of Mrs. Vines forcibly and against her will. An intention to do any one of three things might be inferred from this evidence: rob, frighten, or rape; or there might have been some other motive for his conduct, difficult to conjecture." In almost all the cases cited the defendant in making the attack did not express any intention to have carnal knowledge of the female. In all of them the defendant did not express any purpose as to why he made the attack, whereas in the instant case the defendant not only told the female that it was his purpose and intent in attacking her to have carnal knowledge of her, but when arrested approximately an hour thereafter, he also stated to the officers that he "wanted this woman," meaning that he wanted to have sexual intercourse with her. This leaves no doubt, of course, that he wanted to rob or frighten her, or attack her for any other purpose than to have carnal knowledge of her. This then left but one question for the jury to determine, and that was, whether he intended to effectuate this purpose forcibly and against her will. The jury were authorized in the determination of this question to consider the difference in the races, the customs, the scuffling, the time of night, the fact that no lights were there and no one near, and that the defendant did not desist until she unzipped her purse and threatened to blow his brains out. This was ample evidence to sustain the verdict of guilty. See McCullough v. State, 10 Ga. App. 403 (1) ( 73 S.E. 546); Carter v. State, 35 Ga. 263, 264; Jackson v. State, 91 Ga. 322 (2) ( 18 S.E. 132, 44 Am. St. R. 25); Darden v. State, 97 Ga. 407 ( 25 S.E. 676); Watkins v. State, 68 Ga. 832 (2-a); Patrick v. State, 70 Ga. App. 530 ( 29 S.E.2d 103); Brittain v. State, 41 Ga. App. 577 ( 153 S.E. 622); Davis v. State, 46 Ga. App. 732 ( 169 S.E. 203); Jones v. State, 46 Ga. App. 679, 681 ( 169 S.E. 46); Sharpe v. State, 48 Ga. 16; Ware v. State, 67 Ga. 349. While it is true, in some of the cases which we have last cited from the State's brief in the order named therein (and in which all convictions were affirmed), that it does not appear that any purpose was expressed by the defendant as to why he made the assault, we have read them carefully and their facts are sufficient to differentiate the present case from each of the cases cited by the defendant in which the appellate courts reversed the conviction.

2. There is one special exception to an excerpt from the charge of the court, as follows: "Incriminatory admissions are not admissible in evidence if induced by the slightest hope of benefit or the remotest fear of injury, but it must appear that they were freely and voluntarily made." It is contended that the court should have charged without a request that the question was for the jury to determine whether the admissions (a) were in fact made, and (b) were in fact made freely and voluntarily without being induced by hope of benefit or the remotest fear of injury; and that, even though the court had admitted testimony concerning such purported admissions, the introduction of such testimony did not establish that the admissions were incriminating. It is further contended that the following excerpt did not cure such error: "Now, gentlemen, the State has put in evidence certain statements which are contended to have been made by this defendant subsequent to the time of the alleged crime and prior to the trial of this case, and which are referred to as incriminatory admissions." In this connection, it might be well to quote the additional charge of the court on incriminatory admissions, as follows: "An incriminatory admission, as applied to a criminal case, is a statement by a defendant of a fact or facts pertinent to the issue and tending, in connection with the proof of other facts and circumstances, to prove the guilt of the accused, but which is of itself insufficient to authorize a conviction, an admission of circumstances which require the aid of other testimony to authorize a verdict of guilty. Incriminatory admissions are not admissible in evidence if induced by the slightest hope of benefit or the remotest fear of injury, but it must appear that they were freely and voluntarily made. They are to be received with care and scanned with great caution."

We must look to the full charge of the court and not to an excerpt thereof. When we do this we find that the court charged fully concerning: (a) the presumption of innocence; (b) the defendant's statement; (c) the law of the offense charged; (d) reasonable doubt; and (e) cautioned the jury that they should not consider anything which the court had said to be the slightest intimation of an opinion as to what had or had not been proved or as to the guilt or innocence of the defendant, and in this connection reiterated that it was the burden of the State to prove the guilt of the accused beyond a reasonable doubt, otherwise they should acquit him. We have studied this ground painstakingly, in view of every phase of the trial, from the viewpoint of the contentions of the defendant that, since the judge charged on incriminatory admissions at all (which was not required without a written request), he should have gone further and charged all the law concerning incriminatory admissions, as set out in this ground. And we have likewise stated the question from the viewpoint and contentions of the State that the excerpts from the charge contained in this ground were correct principles of law and complete, and that if the defendant had desired an additional principle of law charged, it should have been requested in writing. Counsel for both the defendant and the State make earnest and plausible arguments and cite appellate court decisions to sustain their contentions. In our view we do not deem it necessary to set forth here and comment on the decisions cited by both parties, but think it sufficient to say that under the record of this case this ground shows no cause why we should reverse the judgment overruling the motion for a new trial for any of the reasons assigned.

Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.