Opinion
17292.
NOVEMBER 14, 1950.
Rape. Before Judge Andrews. Fulton Superior Court. July 31, 1950.
C. W. Buchanan and Frank W. Brandon, for plaintiff in error.
Eugene Cook, Attorney-General, Paul Webb, Solicitor-General, and William Hall, contra.
1. The venue was sufficiently proved.
2. A ground of a motion for new trial — which alleges that the court erred in refusing to grant a mistrial, upon motion therefor, because the State's counsel, during the trial and in the presence of the court and jury, made improper and prejudicial remarks, and that he was "rebuked" by the court for doing so, but which fails to allege, either literally or in substance, the words employed by the court in rebuking the offending counsel — is too vague and incomplete to be considered by this court and this is especially true where, as here, the alleged improper and prejudicial remarks are of such a character that any injury resulting therefrom may be eradicated from the mind of the jury by a proper rebuke.
3. That portion of the charge given in the instant case under the provisions of the indeterminate-sentence law is not subject to the criticism that it "was repetitious, superfluous, ambiguous, misleading and confusing to the jury." To the contrary, it was a correct, though necessarily lengthy, instruction to the jury concerning the form of their verdict and the punishment to be fixed by them in the event they convicted the defendant of the offense charged.
4. The evidence, though conflicting, was amply sufficient to support a verdict finding the defendant guilty of rape.
No. 17292. NOVEMBER 14, 1950.
An indictment for rape was returned by a grand jury of Fulton County against Joseph Martin and two other named persons. Martin was tried separately, convicted of the offense charged, and sentenced to serve a term in the penitentiary of not less than 15 nor more than 20 years. His amended motion for a new trial was overruled and he excepted.
The State's evidence was, in brief, substantially as follows: The alleged victim testified that she and her husband, Claude Ingram, resided on Magnolia Street in the City of Atlanta. They were walking down that street shortly after midnight on Easter Sunday morning, April 9, 1950. Three men, who were then unknown to her and whom she had never seen before, drove up in a Plymouth automobile. They said: "What is the matter, girl, is that young man bothering you?" She answered that he was not bothering her and that he was her husband. The three men then got out of their automobile, "grabbed" her husband, and the defendant, Joseph Martin, drew a long switchblade knife and cut at him. One of the three men then thrust his hand in his bosom and said to her husband, "You ain't going to get down this street?" Her husband then ran. She screamed and the men pulled her into the automobile. They had a two-seated car and she was placed in the back seat with the defendant Martin and the younger of the two other men. The older man was driving. She later came to know the names of the other two men as William Burch and Clifford Spencer, being the men jointly indicted with the defendant. She was slapped frequently, and with a pistol drawn on her, they kept her head pulled down so that she was unable to see where they were going. Every time she tried to say anything they hit her in the face or over the head. One of the men said, "Let's go out towards the Chitter Chatter." She was wearing pants when she first got in the car. After riding for some time they stopped. Joseph Martin got over in the front seat. Clifford Spencer remained in the back seat. He slapped her, jerked her pants off, and tore them because of her effort to hold them. Spencer had a knife and said, "If you make any outcry I will kill you." He then had sexual intercourse with her forcibly and against her will. Spencer then turned to Joseph Martin and said, "It is your turn now." She hollered and Joseph Martin hit her in the mouth and threatened to kill her if she resisted. He then had and complete sexual intercourse with her forcibly and against her will. Then William Burch, in like manner, had intercourse with her. Her husband had previously given her $7 (a $5 bill and two $1 bills). After the several acts of intercourse were accomplished, the older man said, "Don't take the girl's money, we did enough to her." The defendant Martin later had a second intercourse with her, forcibly and against her will. They rode around for quite a while after she had been raped twice by the defendant Martin and once by the other two men, and one of the men then suggested that they had better get some gasoline. They drove into a service station, and just as the car stopped she jerked loose from one of them who was holding her in the back seat and got out of the car. At that time her blouse was out, her belt was burst, and she was crying. She appealed to the operator of the service station, a Mr. Wright, for protection and immediately told him that the three men she was with had raped her. Mr. Wright told the men to let her alone, and to get away from his station. The men with whom she had been riding got into their automobile and left. As they left she got the license-plate number of their automobile. She remained at the filling station and immediately telephoned the police, who came promptly in response to her call. C. H. Wright, the service-station operator, testified as a witness for the State, and his evidence in substance corroborated the testimony of the alleged victim, as to her jumping out of the car, telling him that she had been raped by the three men with whom she had been riding, begging him for protection, and telephoning the police. He further testified that she was nervous, crying, and that her clothing was "rumpled up," torn and soiled. All three of the men were present when she accused them of raping her and none of them made any denial of the charge. He also testified that the three men left together after getting some gasoline, and that the alleged victim remained at his station until the officers arrived.
Ralph J. Holland, a member of the Fulton County police force, testified as a witness for the State, and in substance said that he saw the prosecutrix on the night of the alleged rape, and that she then told him of the assault which had been made upon her by the accused and the two other parties jointly indicted with him. He further testified that he and his associate officer, after talking to the alleged victim, immediately began a search for the accused men, and after driving around for some time they drove into a service station at the intersection of Mitchell and Haynes Streets and there found William Burch, Clifford Spencer, and the defendant Martin in the automobile which the alleged victim had described to him. They were located about 2:30 a. m. during the same night. All three of them were then arrested, and each freely and voluntarily admitted to him that he had had sexual intercourse with the prosecutrix during that night with her consent and for a price which was paid to her at the time. He also testified that he afterwards located the place where the alleged acts of intercourse with the prosecutrix occurred; that the defendant and his co-indictees freely and voluntarily identified it as the place where they had had intercourse with the prosecutrix on the night in question; and that the place so identified by the defendant and his associates was in Fulton County, Georgia.
In his statement to the jury, the defendant said that the prosecutrix voluntarily got into the car with him and his associates on the night of the alleged offense; that she consented to and did have intercourse with him for a price, which he paid her; and that he did not afterwards take the money away from her.
1. In the first ground of the amended motion for new trial, it is contended that the venue of the alleged offense was not sufficiently shown. There is no merit in this ground. A witness for the State, a police officer, who conducted an investigation of the offense charged, testified that the defendant and his co-indictees freely and voluntarily admitted to him and his associate investigating officer that they each had sexual intercourse with the prosecutrix; that they afterwards freely and voluntarily identified the place where she claimed that they had raped her; and that the place so identified was in Fulton County, Georgia. The defendant offered no evidence to show that his admitted act of intercourse was committed elsewhere; and this court has frequently said that, where there is no conflict in the evidence concerning venue, as here, only slight evidence is necessary to prove venue. Climer v. State, 204 Ga. 776 (2) ( 51 S.E.2d 802); Carrigan v. State, 206 Ga. 707, 718 ( 58 S.E.2d 407). And Alderman v. State, 57 Ga. 367 (2), cited and strongly relied upon by the plaintiff in error, does not require a ruling different from the one here made; and this is true because the facts in the instant case concerning venue are materially different from those in the case cited and relied upon. Consequently, the court did not err, as contended, in overruling the amended motion for new trial upon the ground that the State failed to prove venue.
2. Special ground 2 complains of the court's failure to grant a mistrial, on motion of the defendant's counsel therefor, "when highly prejudicial and improper remarks were made by the assistant solicitor [naming him] to the court and jury, to the effect that he was going to ask the court to hold a certain witness for the defense [naming him] for contempt of court for having attempted to intimidate a witness for the State, namely, the prosecutrix [naming her]." Later, in the same ground, it was also alleged "that it is highly probable that the injury was not eradicated by the instructions to the jury to disregard the remarks and by the rebuke of the offending assistant solicitor by the court." We are not authorized to say that the court erred in overruling the amended motion and in denying the defendant a new trial on this ground. We are of the opinion that any possible injury which may have resulted to the defendant from the alleged improper and prejudicial remarks could have been eradicated from the mind of the jury by a proper rebuke of the State's counsel ( Sloan v. State, 183 Ga. 108, 187 S.E. 670); and since the movant did not allege, either literally or in substance, the language employed by the trial judge in rebuking the State's offending counsel for any improper and prejudicial remark so made, the ground is too vague and incomplete to be considered by us. Dye v. Dotson, 201 Ga. 1, 8 (6) ( 39 S.E.2d 8); Harrison v. Lovett, 198 Ga. 466 (5) ( 31 S.E.2d 799). However, there is a presumption that the trial judge properly rebuked counsel for the alleged improper and prejudicial remarks; and no facts being alleged which are sufficient to show that he did not, we will presume that he did and that the defendant suffered no injury from the remarks complained of. The burden is always upon him who asserts error to show it affirmatively by the record.
3. In special ground 3 of the amended motion for new trial, the movant insists that a lengthy quoted part of the charge, given to the jury concerning the form of its verdict in the event they convicted the defendant and the punishment they would be required to fix under the provisions of the indeterminate-sentence law, "was repetitious, superfluous, argumentative, ambiguous, misleading, and confusing to the jury." We have carefully examined the charge as a whole, and especially the portion complained of, and it is sufficient to say, without quoting the excerpt excepted to, that it is not subject to any of the imperfections asserted. Consequently, this ground of the motion is without merit.
4. Although the statement of the defendant and the testimony of his two companions, as witnesses in his behalf, were to the effect that the defendant's admitted act of sexual intercourse was with the consent of the prosecutrix, and that she got into the automobile with them voluntarily, and to that extent such statement and testimony were in conflict with the alleged victim's testimony, nevertheless, her evidence, with its corroboration by other witnesses, as shown by our statement of the facts, was amply sufficient to authorize the jury to find the defendant guilty of rape; and that being true, a reversal of the judgment complained of is not required on the general grounds of the motion.
The judge did not, for any reason assigned, err in rendering the judgment complained of.
Judgment affirmed. All the Justices concur.