Hodnett v. State , 197 Ga. 730 ( 1944 )

1. The evidence authorized the verdict.

2. In the absence of an appropriate written request, it is not cause for a new trial that the court omitted to instruct the jury as to the manner of testing the credibility of witnesses.

No. 14855. JUNE 7, 1944. Albert B. Hodnett was convicted of rape, with a recommendation of misdemeanor punishment, and sentenced to serve twelve months on the public works. His motion for new trial, based on the general grounds and one special ground complaining of a portion of the charge to the jury, was overruled, and he excepted.

The evidence was substantially as follows: The defendant was a white man and the alleged victim a negro girl between twelve and thirteen years of age. The defendant was married and had several children. According to the State's evidence, the prosecutrix was standing on a street corner in the City of Atlanta with another negro girl about her age, when the defendant drove up in his automobile, and after stopping his car asked them if they knew anybody who would like to have a job helping his wife around the house and looking after his children. The prosecutrix said that she would take the job, and the defendant told her to get in the car, which she did. He then drove off, but instead of going directly home, went out toward the Buford highway, and after getting some distance from Atlanta drove the automobile into a side road in some woods; and while the car was parked at this spot raped the girl in the back seat of the automobile. After the act was completed and while the defendant was attempting to get his car started, the girl left and on reaching a home on the highway, related to a white woman what had happened. She was crying and partly hysterical. The police officers were called, and went to the place of the alleged crime, taking the girl with them. They found the defendant still there trying to get his car out of a ditch. He was put under arrest and placed in jail, and the girl was carried to the DeKalb County physician for examination. The physician testified that there was evidence that the hymen had been torn, and that there was some bleeding. The officers testified that they examined the underclothes of the defendant and that there was a moist spot on his shorts. The defendant in his statement said that he had just had some work done on his automobile, and had been advised by the mechanic to drive the car as much as possible so as to get the motor in good condition; and that this was the reason why he decided to drive around before going home. He admitted that he had picked up the girl, but stated that he was taking her to his home for his wife to see if she cared to employ the girl. On the way home, and while the car was being driven along the highway, the motor became hot, and he decided to drive off the highway and into a side road to let it cool off. He denied that he had harmed the little girl in any manner, and said that she had voluntarily left while he was working with the car. 1. The plaintiff in error concedes in his brief that the evidence, if believed, was sufficient to authorize a conviction, and that "ordinarily this court would be without authority to set the verdict aside," but argues that "there is ample precedent in prior decisions of this court for varying the rule in cases where a conviction of rape was based on the testimony of a young girl, and where all the circumstances indicated that her testimony was not credible." The case of Davis v. State, 152 Ga. 320 (110 S.E. 18), and the cases therein collected and discussed are insisted upon as authority for this position. An examination of the Davis case, and the cases therein cited and discussed, discloses that all of them turned upon the proposition that in each case the evidence as a whole failed to satisfactorily establish the fact that the intercourse was accomplished forcibly and against the will of the female. In these cases the court properly held that in order to constitute the offense of rape, the female must resist with all her power, and keep up resistance as long as she has strength; that opposition by mere words is not sufficient and a passive policy will not do. The rule there laid down has no application to the case now under consideration. Here, the female alleged to have been assaulted was under fourteen years of age and therefore incapable in law of giving her consent. Code, §§ 26-1303, 26-1304 (Ga. L. 1918, p. 259). The verdict was authorized by the evidence, and, having the approval of the trial judge, will not be disturbed.

2. There is only one special ground. Complaint is made concerning the following excerpt from the charge of the court. "Now, gentlemen . . you are the exclusive judges as to the credibility of the witnesses, and as to what weight or credit will be given to the various witnesses, and as to what weight and credit will be given to the defendant's statement." The plaintiff in error concedes that this excerpt states a correct principle of law, but contends that the judge should have gone further and instructed the jury that in determining the credibility of the witnesses they would have the right to observe the manner of the witnesses on the stand, their interest or want of interest, their bias or prejudice, if any, their intelligence or want of intelligence, and their age, as well as every circumstance that had occurred in their presence during the trial. The plaintiff in error contends that in the instant case the failure to give the jury this additional instruction on account of the age and mental capacity of the prosecutrix, and the improbability of her testimony, was particularly harmful to him. In George v.McCurdy, 42 Ga. App. 614, 617 (157 S.E. 219), the court said: "In another ground of the motion for a new trial complaint is made that the same charge was erroneous because it omitted to say that `the jury may take into consideration the intelligence of the witnesses and the probability or improbability of their testimony.' It is contended that a part of the testimony of McCurdy, the maker of the notes, was improbable, and that for this reason the jury should have been instructed as to their province in considering the probability or improbability of the testimony. In our opinion, an instruction of this sort would not be necessary in order to insure a proper consideration and appraisal of the testimony by the jury. Trial jurors are themselves selected for their intelligence and uprightness (Civil Code of 1910, § 6546), and would hardly need to be told that in weighing the evidence they might or should take into consideration the intelligence or lack of intelligence on the part of the witnesses, or the probability or improbability of their testimony. At least it was not error to omit to instruct the jury as to these subjects, in the absence of a timely written request." See also, Freeman v. Coleman, 88 Ga. 421 (3) (14 S.E. 551); Campbell v. State, 123 Ga. 533 (7) (51 S.E. 644); Lewis v. State, 125 Ga. 48 (53 S.E. 816); MallaryBrothers Co. v. Moon, 130 Ga. 591 (61 S.E. 401); Fry v.State, 141 Ga. 789 (4) (82 S.E. 135); Scott v. Wimberly,188 Ga. 148 (5) (3 S.E.2d 71). It follows that there is no merit in this contention. The court did not commit error in overruling the motion for a new trial.

Judgment affirmed. All the Justices concur.