Opinion
14357.
NOVEMBER 10, 1942.
Rape. Before Judge Anderson. Bibb superior court. August 14, 1942.
Thomas W. Johnson and Thomas A. Jacobs Jr., for plaintiff in error.
Ellis G. Arnall, attorney-general, Charles H. Garrett, solicitor-general, and Claude Shaw, assistant attorney-general, contra.
Conviction of rape was authorized by the evidence. Rulings on admissibility of evidence, and instructions to jury, presented no cause for new trial.
No. 14357. NOVEMBER 10, 1942.
The plaintiff in error was convicted of the crime of rape on the person of the prosecutrix, and was sentenced to be electrocuted.
The State introduced evidence to the effect that the prosecutrix, aged forty-seven, lived in a remote section just outside of the City of Macon. She was a mill worker in one of the plants of the Bibb Manufacturing Company. Her hours at the mill were such that she left the mill about ten thirty o'clock at night. Her home was near some railroad yards, several blocks from the mill, in an industrial section. On the night of May 19, 1942, she left the plant of the company about the usual hour, and proceeded alone on her way homeward. Crossing the plant of the Atlantic Refining Company and the main track of the Central of Georgia Railway, she noticed two negro men following her. One of them she identified as the accused. They came near and spoke to her. She tried to get by them, but the accused struck her, seized her neck in both hands, and commenced choking her. She struck at him with a little knife she always carried on her way home, and scratched at him. He got her down and was choking her. The other negro came up and said, "I am going to get me some to-night," and pulled up her clothes and got down on her and touched her legs, within two or three inches of her privates, with his sexual organ, while the defendant was still holding her. The sexual organ that she felt was "sloppy and nasty." At this point she lapsed into unconsciousness. She came to herself shortly before twelve o'clock. When she regained consciousness, she was sick. She had some kind of liquid matter, which she called water, on her person in the pelvic region. She arose and made her way to a neighbor's house, and complained to them that "two colored men have almost killed me." This neighbor took her to the Macon Hospital, returning to her home in a few minutes. The next day she sent for a physician who had attended her before. This physician testified that he found her in a highly nervous state, lying on her bed, and that he saw evidences of bruises and scratches on her neck, face, and head. Around her pelvis and the lower abdominal region she was very sore and tender. When he touched the different parts she would flinch. He made an examination of her vagina on Friday before the trial, and it was exceedingly sensitive. She had never complained of soreness in these parts before. He had never found anything abnormal about her private organs, and no evidence of disease before the time that he was called in to treat her just before the trial. He further testified, in effect, that she had gonorrhea, and that ordinarily there must be some penetration to communicate this disease to a female.
The prosecutrix further testified: "On the night in question, when I came to myself, I felt nasty and sloppy and was sore and couldn't hardly move, and all across my left side was sore, and I was sore on the inside. I was not sore in those tubes that night, but I was sore in there the next day. . . I have not had sexual intercourse with anybody since my husband left me [several years ago]. I had a discharge from my vagina the next day after this attack. Nasty stuff passed from me." She was positive in her identification of the accused as the man who caught and choked her and knocked her in the head. She could not see the other man well enough to identify him. "That night when [the accused] attacked me he had on a white shirt. . . I know he had on a dark pair of pants and a white shirt, and the shirt opened back like this, and rolled back here. . . As to whether I got my hand in the back of his neck, I know that I scratched him. I don't know just where I scratched him, but I fought for all I was worth. The last thing I remember he said to me `Are you going to give up?' I reached up and scratched him with all the strength I had, in his face. . . It was a bright night, and a bright light was shining. There was some kind of a light at the railroad down there that reflected up there. The oil company had a light burning out there. The Buckeye Cotton-Oil Company had a light burning out there, but it was about five hundred yards from there, but there was a light on the railroad down there that threw a bright reflection on the place."
The State proved, that on the day after the alleged rape there was evidence of a struggle on the ground; that a white shirt, with blood stain on it, belonging to the accused was found at his father's house; that she made complaints that night of the assault; that an apron and a small pocket-knife were found that night at the place of the alleged crime; that the accused had evidence of scratches on his face, a wound under one eye, and four or five places on his right shoulder-blade that looked like they had been made with a knife.
The defense proved his good character, showed by several witnesses that he was elsewhere at the time the alleged assault was made, introduced testimony to explain that the bloodstains on the shirt were not his, and the scratches on his face were put there by some one else, the absence of a moon on the night of the attack, and the absence of artificial lights in the immediate vicinity.
To the refusal to grant a new trial on the general and certain special grounds, the defendant excepted.
1. While it has often been said that explanatory definitions of "reasonable doubt" are not to be commended ( Parker v. State, 3 Ga. App. 336, 59 S.E. 823; Clay v. State, 4 Ga. App. 142, 60 S.E. 1028; Norman v. State, 10 Ga. App. 802, 804, 74 S.E. 428), and that they are plain English words, and elaborate discussions and amplifications of them often fail to result in elucidation ( Campbell v. State, 144 Ga. 224, 87 S.E. 277), because attempting to define the word "reasonable" when applied to reasonable doubt "is trying to count what is not number, and to measure what is not space" ( Cook v. State, 13 Ga. App. 308, 79 S.E. 87; Floyd v. State, 58 Ga. App. 867, 200 S.E. 207; Bone v. State, 102 Ga. 387, 392, 30 S.E. 845; Battle v. State, 103 Ga. 53, 29 S.E. 491); and further, because the phrase explains itself and the meaning is obvious and will be readily appreciated by the average person, without further explanation ( Nelms v. State, 123 Ga. 575, 51 S.E. 588), yet it has also been held that a charge to the jury on that subject, though somewhat elaborate in its definition, if it contains no erroneous statement of the law, will not work a reversal. Campbell v. State, supra.
2. Having charged the jury that the burden was on the State to prove the guilt of the accused beyond a reasonable doubt, it is not cause for new trial that the judge further instructed the jury in effect as follows: (a) A reasonable doubt is just what the term implies. It is a doubt based on reason, a doubt for which you can give a reason. Mundy v. State, 9 Ga. App. 835 (4) ( 72 S.E. 300); Vann v. State, 83 Ga. 44 ( 9 S.E. 945); Jordan v. State, 130 Ga. 406 ( 60 S.E. 1063); Arnold v. State, 131 Ga. 494 ( 62 S.E. 886). (b) It is not a fancy or conjecture or supposition that the defendant might be innocent, but it is such a doubt as a reasonable man would have, act upon, or decline to act upon in a matter of importance or grave concern to him. Clay v. State, supra; Parker v. State, supra; John v. State, 33 Ga. 257. (c) In other words, it is the doubt of a fair-minded, impartial juror, honestly seeking for the truth; and it may arise from a consideration of the evidence, or from a conflict of evidence, or from the statement of the defendant. Miller v. State, 94 Ga. 1 ( 21 S.E. 128); O'Dell v. State, 95 Ga. 333 ( 22 S.E. 548).
3. A ground of a motion shows no reason for the grant of a new trial which complains that the judge, without request, should have charged the jury that a particular fact which was a necessary ingredient of the offense charged should be shown by the evidence to a reasonable certainty; the charge in several places containing an instruction to the effect that unless the State proved its case beyond a reasonable doubt the defendant should be acquitted. "It is not incumbent upon the court to carve the case or the evidence into different propositions, and apply the rule of reasonable doubt to one or more of them severally." Carr v. State, 84 Ga. 250 ( 10 S.E. 626). See Smith v. State, 124 Ga. 213 ( 52 S.E. 329); Davis v. State, 125 Ga. 299 ( 54 S.E. 126); Nance v. State, 126 Ga. 95 ( 54 S.E. 932); Fargerson v. State, 128 Ga. 27 (2) ( 57 S.E. 101); Montford v. State, 144 Ga. 582 ( 87 S.E. 797); Bell v. State, 148 Ga. 352 ( 96 S.E. 861).
4. A ground of the motion which avers that the court erred in failing to charge the jury "that if the defendant made an assault on the prosecutrix and beat her, but that he did not penetrate her female organ of generation with the male organ of generation, he would not be guilty of the offense of rape," is without merit, when, as here, the record discloses that the jury was charged: "In order for the alleged crime of rape to be made out, it must be proven beyond a reasonable doubt that there was a penetration of the female organ of generation or the private parts of the female by the male organ of generation of the male. This penetration may be great or slight, but there must be a penetration, either great or slight, in order for the alleged crime of rape to be consummated."
5. Where the evidence on behalf of the State, if true, proved a felonious assault, the accused denying that he committed any assault upon the female, but instead introduced testimony to sustain his defense of alibi, it was not error to omit to charge on the law of assault and battery, since under any view of the evidence the offense of assault and battery was not involved. Wade v. State, 11 Ga. App. 411 (5) ( 75 S.E. 494); Langston v. State, 23 Ga. App. 82 (4) ( 97 S.E. 444); Finney v. State, 51 Ga. App. 545 ( 181 S.E. 444). See Haden v. State, 176 Ga. 304 ( 168 S.E. 272).
6. In a rape case, penetration may be proved as well by indirect or circumstantial evidence as by direct evidence. Wesley v. State, 65 Ga. 731 (4); Ravenel v. State, 153 Ga. 130 (2) ( 111 S.E. 643); Haden v. State, supra.
7. There was ample evidence on the trial to show that the crime of rape had been committed on the person of the prosecutrix at the time and place alleged in the indictment. She testified positively that the accused was the perpetrator of the crime; and some circumstances, if believed, tended to corroborate her testimony that he was the assailant. The accused made proof of his good character. There was evidence for the defense, tending to show that she could not have identified him, the assault being at night along a path or alley way not in close proximity to a light. A large number of witnesses for the accused testified as to facts which, if true, made it impossible for him to have been present at the scene of the crime when it was committed. It was, however, the province of the jury to judge of the credibility of the witnesses, and to determine what was the truth of the case. The evidence authorized the verdict of guilty. None of the grounds of the motion are of a character to justify this court to set aside the finding. The judge who tried the case declined to grant a new trial, thus approving the verdict. An affirmance necessarily follows.
Judgment affirmed. All the Justices concur.