Opinion
14450.
MARCH 10, 1943.
Rape. Before Judge Pomeroy. Fulton superior court. November 30, 1942.
Jesse B. Simmons and Wesley R. Asinof, for plaintiff in error.
T. Grady Head, attorney-general, John A. Boykin, solicitor-general, Durwood T. Pye, E. E. Andrews, L. C. Groves, and A. J. Hartley, assistant attorneys-general, contra.
1. A ground of a motion for new trial should be complete in itself, and other parts of the record will not be looked to for the purpose of making the ground certain or definite.
2. The testimony of a witness describing the condition of a woman, a few minutes after she claimed to have been raped, and at the time she made a complaint to the first person available, that "she came in in a very nervous state of mind and screaming," was not subject to the objection that it was a conclusion or an opinion on the part of the witness. Richards v. State, 152 Ga. 207 ( 108 S.E. 800).
3. Admission in evidence of statements made by the accused immediately before the crime was committed, tending to prove that the accused was present at the place and at the time the crime was committed, was not error.
4. The fourth ground of the motion is not complete in itself, and is subject to the rule announced in headnote 1.
5. Clothing shown to have been worn by the defendant at the time of the commission of the crime was admissible for the purpose of identification.
6. It is in the discretion of the trial judge whether a case shall be reopened for the introduction of additional evidence.
7. Ground 7 of the motion is not complete, and is subject to the rule stated in headnote 1.
8. It was not error to instruct the jury: "You have the right to believe the defendant's statement in preference to the sworn testimony of the witnesses."
9. In charging on the law of rape the court did not express any opinion as to what had or had not been proved.
10. The charge of the court explaining the right of the jury to recommend mercy in the event they found the defendant guilty was not error for any reason assigned.
No. 14450. MARCH 10, 1943.
Mose Sims was convicted of rape, and was sentenced to electrocution.
On the night of March 5, 1942, Mrs. C. W. Kuehnle accompanied by her son, a young man seventeen years of age, drove an automobile from their home on Hudson Drive to a point on Court-land Street in Atlanta near the Sacred Heart Church. They had gone there for the purpose of getting her husband, who was attending a men's smoker. They arrived about 9:30 p. m.; and after parking the car next to the curb, the son went into the church, leaving his mother in the parked car. Neither the son nor the father returned to the car until after the incident hereinafter related had taken place.
Mrs. Kuehnle testified: "After my son got out of the car and went into the building, the first thing that attracted my attention was that I saw this negro coming toward me and going to and touching some of the car doors. He did not open any of them, because they seemed to be locked. Just before he got to our car, he went on. He must have seen me, and I did not see him any more. He kept on up the street, and I did not pay much attention to it. The door of my car was locked, and the windows were up. So I sat there a few more minutes, and I felt a sensation like the car was being moved, and I got out to see who it was; and as I got to the back of the car this negro was crouched in back of the car, and he jumped at me, and I ran up the street calling for help. I must have run the length of six cars. . . When I ran, he ran after me. I ran as fast as I could and he caught me and put both hands over my mouth to keep me from screaming. I got away from him. He put his hands around my throat. I struggled desperately and tried to stay in the street where some motorist would see me, and he repeatedly slapped me in the face — struck me in the face each time I screamed. He did not say a word to me, but he struck me in the face four or five times, I should say. He had his hands around my throat just long enough for me to take them off. I struggled desperately with him until I was exhausted, and he threw me to the ground. At that time we were on the extreme side of the street, on the right side of the street. I had run that way, because there were houses over there, and I tried to attract some one by screaming for help. He threw me to the ground and tried to drag me to the extreme left side where there were cars parked. He dragged me, and I tried to get away, but I was exhausted. . . I tried to fight him off. After I fell to the ground I got back up and fought some more. I was thrown down, I can't tell you how many times; and finally I was dragged between the cars on the left-hand side of the street going out of town, on the same side where my car was parked. . . When he dragged me to the left-hand side of the street I was pretty nearly exhausted, but I called my husband, and this defendant struck me in the mouth once more, and he said he would kill me if I cried once more, and I said no more. He tore my clothes off me and attacked me — he assaulted me. He tore my clothes off me and had sexual intercourse with me, forcibly. I did not say anything to him that I can remember. I was too excited, fighting him off, too scared to remember what I said, if anything. At the time he had this sexual intercourse with me I was lying partly in the street and partly on the sidewalk on Courtland Street right in front of the school building. . . While I was on the ground I turned my head from side to side looking for some one, and I saw the figure of a woman up under a house like, and I put my arm up to attract her attention. I was too frightened to scream, but no one appeared — they disappeared in a little while. I absolutely recognize the defendant, Mose Sims, as the person who committed this act that I have described. I know that he is the person who committed it. After he committed this act of sexual intercourse he suddenly left me and ran away, and I ran into the building where my husband was. The defendant ran toward town. He took what was left in my car. I left it open. I did not see him take anything out of the car. As soon as this defendant released me I ran toward the school, the church building, where my husband was, and just fell there. I was about exhausted and in a very hysterical condition. My clothes were torn off me. I was screaming. I was hysterical and very nervous. When I got inside the building they tried to quiet me, and then took me to the hospital for first aid. My husband and another gentleman took me to the hospital. I do not remember the name of the other gentleman, but he is here some place. When I got inside the school building I sank down on the steps. I could not get down the steps that lead down into the building, but sank down on the steps. My knees and ankles were badly bruised, and I had a bad cut on my hand and my lip was swollen up and my face badly bruised. I don't remember that I had any bruised mark on any other part of my body. . . I reported to my husband immediately what this defendant had done to me. I was knocked down repeatedly by this defendant — four or five times, maybe. After I was knocked down on the right-hand side near the curb on Courtland, I was dragged back toward the left-hand side, and this act of sexual intercourse was committed on the left-hand side, between parked cars that were headed out toward Forrest Avenue. The defendant had hold of me at the time he had this sexual intercourse with me. He was lying on me. I do not recall where his hands were. I was very much excited at the time. . . The male organ of this defendant Mose Sims, penetrated my female organ."
Mrs. Kuehnle identified some of the clothing she was wearing that night, showing mud thereon, and described the coat and cap worn by the accused. She testified that she had a skirt lying in the car, which was taken by accused after the assault.
Gertrude Robinson, with whom Mose Sims lived in the immediate vicinity of the place where Mrs. Kuehnle testified she was assaulted, testified that, a few minutes before this assault was committed, she had left Mose Sims in that immediate vicinity, and shortly after parting she heard a woman screaming. Upon hearing the screaming she went out of her house and looked in the direction of the screaming, and saw a woman on the ground. "She was hollering help, murder," and Mose Sims was standing over her. Shortly thereafter the woman got up and went into the schoolhouse, and Mose Sims went behind the automobiles about the time some men came out of the schoolhouse. This witness also testified to a statement made in her presence after accused was arrested: "Mose said that when he got to this car the lady was back up in there like that, and when he opened the door he snatched her out; and so a man asked him `Did you pull her dress up?' and he said `No, when I snatched her out her dress was already up, and all I had to do was what I done,' and I said, `Mose, do you mean to tell me that you really, you know,' and he said, `I have done told you,' and went to crying."
Testimony by the husband, C. W. Kuehnle and J. T. Schauppe, who were in the schoolhouse when Mrs. Kuehnle came in after the assault, was to the effect that she at once reported what had happened, and that she was badly bruised, cut, bleeding, upset and nervous.
Calvin Cole testified that after arrest the accused freely and voluntarily admitted the crime, accompanied him to the place, and pointed out where the car was parked, the manner in which it was parked, and the place where the intercourse took place; and that subsequently a full written confession was made, which confession was introduced in evidence. Other evidence showed that the accused had possession of a dress taken out of the car after the assault.
The defendant made a statement to the jury at the trial: "The night they said this happened I was coming down Courtland Street, and I was looking in some cars as I walked along, and when I got to this car I did not see her, and I saw a coat hanging on the back seat. By her sitting in the seat with her head back I thought it was a coat. I was intending to steal a tire out of the back, the trunk, and I could not get in, and I was going to open the door, and she jumped out and grabbed me, and I knocked her down, and people started crowding down out of the building, and I left and went down on Piedmont and then went home. . . The night this happened I was coming down Courtland, and I was searching some cars, and when I came to this car where this lady was I did not know that she was in there. I did not pay it that much attention. I was about drunk. I started to unlock the trunk to get a tire, and it was locked and I could not get it open, and I went around to the side to get in the car to get something to unlock it with, and this lady jumped out and hit me in the face, and I hit her and knocked her down, and she commenced hollering, and folks commenced crowding out of the building, and I ran. So far as knowing anything about that, I did not do it. I did not touch her no more than knocking her down. Mr. Moss got me in the court-house and beat me and stomped my face. That's the reason I made that statement. He had his feet on the back of my neck, and he nearly killed me. I can prove it by folks that saw me that I was swollen all up and beat up like a dog."
1. The first special ground of the motion complains of error by the court in permitting the solicitor-general to make certain statements to the jury in reference to "who it was that committed the offense," in outlining the State's case to the jury before the introduction of evidence. The statements complained of as having been made by the solicitor-general are not incorporated within the ground of the motion. "A ground of a motion for new trial should be complete in itself, and other parts of the record will not be looked to for the purpose of making the ground certain or definite." Ewing v. State, 183 Ga. 127 ( 187 S.E. 628), and cit.
2. The second headnote requires no elaboration.
3. While the witness Gertrude Robinson was on the stand, and after she had testified that she was with the accused immediately before the crime was committed, and that he left her near the place, the accused objected to the following testimony: Q. "Did the defendant tell you where he was going when he left you?" A. "I said, Mose . . When we got to where I lived, I said, `Are you going home?' and he said, `No.' He said he was going up on Decatur Street." Objection was made to this testimony on the ground it was irrelevant and immaterial and had no bearing on the issues of the case. This evidence was admissible for the purpose of accounting for the presence of the accused at the place of the crime. Code, § 38-302. There could not have been any error in receiving this testimony, as the accused in his statement to the jury admitted he was at the place and had a physical difficulty with Mrs. Kuehnle.
4. The witness Gertrude Robinson testified: "I heard him [accused] make a statement after he was arrested and taken to the police station." No one did anything to him to make him make that statement at the police station." Q. "Tell us what was said and done." The motion for new trial contains no reference to any testimony other than that just quoted, nor does it set forth any objection interposed in the trial court. Accordingly it is subject to the rule stated in the first division of this opinion.
5. The court permitted the State to introduce in evidence a coat and cap. Mrs. Kuehnle had testified that the accused was dressed in a dark coat and a cap. Gertrude Robinson testified that on the night of the assault the accused, before going to bed, hid his coat and cap under the bed, and that later these articles were turned over to the police. They were identified in court by Gertrude Robinson. These articles were admissible for the purpose of identification of the accused. Had they not been admissible, such evidence would not have been harmful, as the accused in his statement admitted that he had a fight with Mrs. Kuehnle.
6. The court did not err in permitting the State to place a witness on the stand for the purpose of amplifying testimony she had previously given; even though both the State and accused had announced "closed," and were about to begin argument. It is in the discretion of the trial judge whether a case shall be reopened for new evidence. Strickland v. State, 115 Ga. 222 ( 41 S.E. 713).
7. Ground 7 of the motion is as follows: "Movant contends that the court erred in refusing to strike from the records the purported confession, on the ground that it was secured by coercion. Movant then and there objected, and now objects and insists that the said document was not admissible, and its admission was highly prejudicial to movant and is contrary to law." This is not a good ground for new trial. It does not set forth any objection to the evidence made at the time of its introduction, nor does it incorporate the evidence within the ground of the motion. Accordingly it is not complete within itself, and is subject to the same rule as is announced in the first division of this opinion.
8. A ground alleging that the court erred in charging the jury: "You have the right to believe the defendant's statement in preference to the sworn testimony of the witnesses," is without merit. The court charged fully on the law in reference to the defendant's statement. This was the last sentence in the charge on that subject, and is not error for any reason assigned.
9. In defining rape to the jury, the court charged as follows: "The offense charged here is rape, and rape is the carnal knowledge of a female forcibly and against her will. You will notice that there must be carnal knowledge, which means a penetration of the male organ into the female organ — at least a slight penetration, but there must be a penetration. It must be against the will of the female. Of course it must be forcibly and without the consent of the female involved." Accused contends that the last sentence, "of course it must be forcibly and without the consent of the female involved," was an expression "that would lead the jury to believe or draw emphasis that there was force." This charge did not express any opinion as to what had or had not been proved, and no error was committed.
10. After charging the jury that in the event they found the defendant guilty, there were two verdicts they could return, to wit, a verdict of guilty, which would mean the death sentence, or a verdict of guilty with recommendation to mercy, in which event the jury would fix the punishment at not less than one year or more than twenty years, the court charged as follows: "There is no rule or standard that I can give you in determining whether or not you would make a recommendation of mercy in the event you find a verdict of guilt. That is a question that the law leaves to the enlightened consciences of impartial jurors. You could take into consideration all the evidence in the case and the defendant's statement, in determining that question. That right should not be exercised capriciously, but with a wise discretion, prudently and wisely exercised. It should be the deliberate view of the jury under all the circumstances, considering the rights of the defendant and the rights of society, as shown by the evidence and by his statement." The accused asserts that the last sentence in the foregoing charge was error, in that this "has a tendency to discredit a statement of the defendant by comparing it with evidence, and would have a tendency to illustrate discrepancies." This charge was not subject to such criticism.
The court fully charged the law on the issues involved in the trial. The evidence amply supported the verdict. The court did not err in refusing to grant a new trial.
Judgment affirmed. All the Justices concur.