Kilgore v. State , 67 Ga. App. 391 ( 1942 )

Denial of a new trial after conviction of incest was not error. (McINTYRE, J., dissents.)

DECIDED MAY 2, 1942. REHEARING DENIED MAY 21, 1942. The defendant was convicted of incest with his unmarried daughter who was about twenty years of age. It would serve no good purpose to enter into a detailed discussion of the most horrible and sordid details which the daughter related and which she contended covered a period of several years. The controlling issue is whether or not the testimony of the daughter was sufficiently corroborated. The only other exception is to the following charge of the court: "Gentlemen of the jury, the indictment in this case has been read to you once, and you will have it out with you and you can refer to it as often as you see proper to understand the charge that the State makes against the defendant." The court elsewhere in the charge instructed the jury fully as to the burden of proof, the presumption of innocence, and the degree of evidence necessary to convict. There is no merit in this contention.

As to the sufficiency of the supporting or corroborating evidence, we deem it unnecessary to detail this. In Salter v.State, 163 Ga. 80 (135 S.E. 408), a rape case, the Supreme Court approved the following charge: "To corroborate means to confirm, or to substantiate, or to support. . . Circumstances are facts or things standing around or about some central fact. . . `Corroborating circumstances,' in ordinary language, would mean the surrounding or attending facts." Also, slight evidence that the crime was committed by the defendant will corroborate the accomplice and warrant conviction. Evans v. State, 78 Ga. 351;Anglin v. State, 14 Ga. App. 566 (81 S.E. 804);Brown v. State, 18 Ga. App. 288 (89 S.E. 342); Little v.State, 31 Ga. App. 145 (120 S.E. 33); Williams v. State,40 Ga. App. 217 (2) (149 S.E. 292); Sheppard v. State,44 Ga. App. 481 (162 S.E. 413); Bradshaw v. State, 44 Ga. App. 783 (163 S.E. 295). Corroborating testimony need not of itself be sufficient to warrant conviction, and need not be corroborating in every material point. It must, however, raise an inference of the defendant's guilt, independently of the testimony of accomplice. Rice v. State, 16 Ga. App. 128 (84 S.E. 609). As to the corroborating testimony in this case, we have evidence from more than one source of the defendant's depraved and perverted state of mind; of his having had illicit relations with his sister-in-law to the extent that prosecution was begun and he was forced to leave his county; that he sought to impose himself on a neighbor's daughter of tender years who had been intrusted to his keeping.

Beginning with this depraved bent of his mind but magnifies the unnatural treatment of his own daughter as related by her brother, her sister, and by the defendant himself. This conduct was repeated, year after year, day after day, and several times a day; he taking her in a room, closing the door, and administering unmerciful, unjustified, and inhuman treatment to the extent that she would weep and become nervous and sick. On most of these occasions the defendant would wait until his wife, the daughter's mother, would be away from the house. The girl testified not only as to these incidents but that she repeated this conduct of her father to her mother again and again. The writer feels that the defendant in his statement furnished sufficient corroboration that she did this. We quote from the statement: "She would tell my wife stories. I have told my wife to watch and see that I didn't mistreat her, and see what she would tell her when she came back; and she told things on me and kept a row in the home nearly two years. She would keep a row between me and my wife; get up a row between us, and then get back out there and laugh at us about it. It would make me mad and I couldn't help whipping her once in a while." Of course, the defendant exculpated himself in his statement to the effect that his daughter persisted in disobeying him with reference to her conduct in entertaining young men to whose visits the defendant objected. But, under the whole record of this case, we are satisfied that the jury was warranted in disbelieving this phase of the defense. While it is the duty of this court to determine, as a matter of law, whether there is any corroborating testimony, yet, when there is any, its sufficiency is a jury question. Brown v. State, 18 Ga. App. 288 (supra).

The jury was authorized to return a verdict of guilty, and the judge did not err in overruling the motion for new trial.

Judgment affirmed. Broyles, C. J., concurs.