Opinion
24984.
ARGUED DECEMBER 9, 1968.
DECIDED JANUARY 9, 1969.
Rape. Dougherty Superior Court. Before Judge Kelley.
Jerry W. Brimberry, R. Edgar Campbell, for appellant.
Robert W. Reynolds, Solicitor General, Arthur K. Bolton, Attorney General, Marion O. Gordon, Assistant Attorney General, Wm. R. Childers, Jr., Deputy Assistant Attorney General, for appellee.
1. Where the female testifies that she is 13 years of age, and that the defendant had sexual intercourse with her, and this is corroborated by her letter to an aunt that she was being molested by the accused who was the only male living in her home, this evidence is sufficient to warrant a conviction.
2. But, where, over objection, hospital records were allowed in evidence, and a laboratory report therein showed the presence of sperm cells in fluid sent to it for examination, and the person or persons making this diagnosis from the examination of the fluid were not presented for cross examination, the allowance in evidence of this report was prejudicial and a reversal is ordered.
ARGUED DECEMBER 9, 1968 — DECIDED JANUARY 9, 1969.
The accused was indicted, tried, convicted and sentenced to serve a term of five years for the crime of statutory rape. The appeal is from the judgment and sentence after the overruling of a motion for new trial, and is based upon errors, in substance, enumerating (1) the lack of evidence to convict as required by Code §§ 26-1303, 26-1304, requiring corroborative testimony of the female, and (2) insufficient evidence under the general grounds of the motion for new trial. The doctor who examined the child at the hospital was a Naval officer on part-time duty who made a vaginal examination and sent a milky secretion found in the vagina to the laboratory for examination. Only the hospital laboratory report of the fluid was used to show the presence of sperm cells, and the person who signed the report in an illegible manner with M.D. behind his name did not testify.
1. The alleged injured female testified that the accused had sexual intercourse with her over a period of two years. But to sustain a conviction, this testimony must be corroborated. Code §§ 26-1303, 26-1304. This requirement was met. The female's letter to her aunt asking her to come and take her away because the defendant was, as therein described, molesting her, and the fact that the accused was the only male in the house where he was living with the victim's mother were corroborating facts and circumstances sufficient to convict. Rivers v. State, 179 Ga. 782 ( 177 S.E. 564); Wright v. State, 184 Ga. 62 ( 190 S.E. 663); Reed v. State, 201 Ga. 789 ( 41 S.E.2d 426).
2. But the evidence is weak, and the slightest prejudicial evidence might easily have unduly influenced the jury in convicting. The medical doctor who gave the child a vaginal examination testified that, based on the laboratory report as well as his physical examination, it was his opinion that she had had sexual intercourse, yet he also testified on cross examination, that he found her perfectly normal and on recall stated he could not say without the laboratory report that she had had sexual intercourse. The purpose of Code Ann. § 38-711 (Ga L. 1952, p. 177) in allowing in evidence the regular routine business records was not to allow the conclusions of anyone, despite the resolution offered in the General Assembly, Ga. L. 1958, pp. 542, 543, declaring the intent and purpose of the law to be to give a liberal and broad interpretation to the section in order to simplify the trial of cases, and it certainly was not intended that such conclusions stand without opportunity to cross examine the maker. In this instance, the laboratory report that certain fluids sent for examination contained sperm cells is definitely the diagnosis of the person signing the report with the initials "M.D." following his signature. Despite the pressures of courts, they must never be in such a hurry that they cannot allow a person to test legitimately evidence that is offered against him. At the very point where courts allow themselves to be stampeded by propaganda into accepting untested and unreliable evidence, liberty dies. Doubtless this doctor concluded that he saw human sperm, but if he had been subjected to cross examination it is possible that he would have modified his opinion or else shown conclusively that he was right. The other doctor testified that based on this laboratory report it was his opinion that the female had had sexual intercourse. He thereafter admitted that this hearsay testimony influenced his expert opinion. Why should courts of justice deny an accused this chance to break down damaging evidence against him? The State has the power to take liberty, but commensurate with that power is the duty to do justice.
It was harmful error to allow in evidence the laboratory report which showed the opinion of this person but did not show that he was qualified. Such hearsay is contrary to justice and should have been excluded. See Camp v. Camp, 213 Ga. 65 ( 97 S.E.2d 125); Martin v. Baldwin, 215 Ga. 293 ( 110 S.E.2d 344); Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872 ( 99 S.E.2d 370); Hawkins v. Jackson, 97 Ga. App. 525 ( 103 S.E.2d 634). Compare Rouse v. Fussell, 106 Ga. App. 259 (3), 261 ( 126 S.E.2d 830) where x-ray pictures were offered and allowed in evidence for examination and testimony by experts. Therefore, because of the error in allowing this evidence as above discussed, the verdict and judgment of conviction must be reversed.
Judgment reversed. All the Justices concur. Frankum, J., concurs in the judgment only.