Mills v. State , 199 Ga. 211 ( 1945 )

1. The instruction of the court that, "It is not necessary that the corroborating evidence, if any, should be of itself sufficient to show the defendant's guilt beyond a reasonable doubt. The jury would be authorized to convict the defendant if they are satisfied of his guilt beyond a reasonable doubt from all of the evidence, that of the female alleged to have been raped and the corroborating evidence, if any, taken together and considered along with the statement of the defendant" — was not, by reason of including the words "if any," harmful error requiring a reversal for the reason that, as contended by the plaintiff in error, it amounted to a charge that the jury, if satisfied of the defendant's guilt, should convict him regardless of whether there was any corroborating testimony or not, since the court, immediately before such instruction, specifically charged the jury that: "Before you would be authorized to convict the defendant, there must be other evidence independent of that of the female alleged to have been raped [naming her], sufficient to connect the accused with the offense charged, and all the evidence taken together must convince your minds beyond a reasonable doubt of the guilt of the accused. It is for the jury to determine whether the testimony of the female alleged to have been raped [naming her], has been so corroborated or not."

2. The charge of the court — that, "On the question of corroboration, you may look to all of the facts and circumstances of the case and see if [the victim] made an outcry at the time the crime was committed, if one was committed, and whether or not she made a report soon thereafter, and whether or not her clothes were torn or her body or person bruised or bleeding, or her private parts injured or bloody, or if there was a struggle, and then determine whether or not her testimony has been corroborated sufficiently to convince your minds beyond a reasonable doubt of the guilt of the accused' — was not, under the evidence, error for the reason urged by the plaintiff in error that it selected and picked out portions of the testimony and directed the jury's attention thereto, and thus gave undue and prejudicial notice and publicity of the same to the jury, and in effect instructed them that such evidence was sufficient to corroborate the victim's testimony, and amounted to an expression of opinion of the evidence most favorable to the contentions of the State and against those of the defendant, but, under the evidence, was an appropriate and legal charge. See Allen v. State, 155 Ga. 332 (116 S.E. 534); Harris v. State, 155 Ga. 405, 410 (3) (117 S.E. 460); Hamilton v. State, 169 Ga. 826 (151 S.E. 805).

3. "Alibi, as a defense, involves the impossibility of the accused's presence at the scene of the offense at the time of its commission; and the range of the evidence, in respect to time and place, must be such as reasonably to exclude the possibility of presence." Code, § 38-122. The burden is on the accused to sustain his defense of alibi to the reasonable satisfaction of the jury in order to overcome proof of his guilt of the crime with which he is charged. Harrison v. State, 83 Ga. 129 (3) (9 S.E. 542); Bone v. State, 102 Ga. 387, 392 (30 S.E. 845); Collier v. State, 154 Ga. 68 (6) (113 S.E. 213). Accordingly, where there was evidence for the State fixing the time of the commission of the alleged crime at the home of the victim in or at Duluth, Georgia, between 8:30 and 10:30 o'clock at night, and the accused was found at her home shortly after she had eluded him and reported the alleged crime to a neighbor at about 10:30 o'clock, testimony of several witnesses for the accused that they saw him at about 9:45 o'clock the same night in front of a drugstore in Buford, Georgia, where a bus stops and customarily departs for Duluth at about 10 o'clock, did not, without evidence that the time at Buford was of the same measure as the time at Duluth, show impossibility of the accused's presence at the scene of the alleged crime at the time of its commission, and in the absence of a special request to charge, the court did not err in failing to charge the law of alibi. Mathis v. State, 153 Ga. 105 (111 S.E. 567); Ethridge v. State, 163 Ga. 186 (14) (136 S.E. 72); Jackson v. State, 172 Ga. 575 (3) (158 S.E. 289); Latimer v. State, 188 Ga. 775, 778 (4 S.E.2d 631).

4. "The evidence authorized the verdict, and the court did not err in overruling the defendant's motion for new trial.

Judgment affirmed. All the Justicesconcur.

No. 15114. APRIL 4, 1945. Carl Mills was convicted of the offense of rape, the jury recommending him to the mercy of the court and fixing his punishment at a minimum of five years and a maximum of ten years. The evidence for the State was substantially as follows: The victim, a woman 84 years of age, and living in or close to Duluth, Georgia, testified that on the night of July 30, 1944, the defendant, a a boy 18 years of age, came to her home, where she was living alone, broke open the front door, and committed upon her the offense of rape. She did not know the time exactly, but guessed that she went to bed about 8 o'clock that night, and that the defendant entered her home about thirty minutes afterwards, and after picking her up, holding her feet above the floor, threw her back on the bed, had carnal knowledge of her forcibly and against her will, and "worried" her until she escaped from him between 11 and 12 o'clock. She left him lying on the bed, went to a neighbour's about 200 yards distant, reported what had taken place, and named the defendant as the perpetrator of the crime, she not knowing exactly but guessing as to the time mentioned by her. This neighbor testified that he went to the nearby home of her son, and they together went to the home of the victim and were joined shortly afterwards by others. Soon after arriving, a shot was fired, and though called upon to come out of the house the defendant refused to do so for twenty or thirty minutes. A truck had been driven near one of the windows and its lights caused to shine into the house, exposing him to view, and he emerged, cursing those outside for meddling in his business and stating that he had done nothing. When seized and subdued after a slight struggle, he stated that he wanted to see a named person and could make bond. There was testimony that his breath smelled as if he had been drinking something, perhaps beer, but that he was not drunk. Some of the witnesses for the State fixed the time when they went to the home of the victim as being about 10:30 or 11 o'clock. The neighbor to whom she reported the occurrence fixed her arrival at his home nearby as being about 10:30, explaining that his children had just come in from church, which customarily adjourns at about that time of night. One of the witnesses, who was called to go to the scene, stated that he had just finished listening to a news broadcast over radio station WSB which begins at 10 o'clock and ends at 10:15. There was testimony by a physician as to bruises about the victim's body, some of which he stated could have been recently caused, and all of which the victim testified were inflicted by the defendant in struggling with her, and also as to certain skinned places upon her legs. He also testified as to lacerations of the vagina and penetration therein, and there was corroboration of her testimony as to the condition of the bed with slats down on one side and disorder in the room in which the alleged crime had been committed.

The defendant made a statement denying the commission of the crime. He stated that on the afternoon of the day in question he went from Duluth to Buford where he attended a picture show, and after getting out went to the home of his sister in Buford, where he remained until about 9:30, when he left to catch a bus which was to leave Buford for Duluth at about 10 o'clock that night. When he reached Duluth at about 10:30 and was near the home of the victim, he observed a man, who wore a white shirt, leaving the house, and, after hollering twice and receiving no response from within the house, went through the open door thereof and shortly afterwards heard a shot fired from without.

The defendant's sister corroborated his statement as to the period of time he was at her home in Buford. There was testimony from several others that between 9:30 and 10 o'clock that night they saw the defendant in front of a drug store in Buford where the bus stops. One of these testified that he knew the time approximately because he had been visiting his son in Buford and left at 9:30, and looked at his watch when he left and it showed that time. He was very close to the defendant at the drug store and spoke to him, and it did not require but about five minutes to go from his son's house to the spot where he saw the defendant. A physician testified that on his maternal side several members of the defendant's family had been afflicted with insanity, and the defendant's father testified that he had a son who was unsound mentally and had twice been sent to an asylum. It was further shown that the defendant had a knot on his head as a result of an automobile accident, but there was no testimony that he did not know right from wrong.

The defendant's motion for new trial on the general and several special grounds was overruled, and the exception here is to that judgment.