Davis v. State , 120 Ga. 433 ( 1904 )

Simmons, C. J.

Davis was tried and convicted of the offense of rape. The woman upon whom the rape was alleged to have been committed testified, in substance, that in August, 1903, the accused came to her house while she was there alone.and proposed sexual intercourse, which she declined; that he then forced her into a small rocking-chair, pinioning her arms with one of his, and accomplished his purpose; that she did not consent, but resisted with all the power she had; that she tried to get up and tried to push him from her, but did not attempt to tear his beard or scratch him; that she had been afflicted with uterine trouble for five years prior to that time, but was improving during the year in which the offense was committed ; that in consequence of her long sickness she was weak and feeble, weighing only 93 pounds. No threats or intimidation appear to have been used, and the woman further testified that the house in which the alleged crime was committed was within twenty-five or thirty yards of the public road and that the road was much used; that she had a number of neighbors, two families of them having houses within fifty ^ards of her house. She testified that after the accused had accomplished his purpose he left her, but in a short time returned, passing through her yard. She did not state whether he spoke to her at this time or not. In his statement the accused says that when he came back and passed through the yard he spoke, to her and asked whether her husband had returned. She further testified that, after the accused had passed through her yard, she started to go to her husband, but stopped, on account of exhaustion, at the house of one of her neighbors and spent some time there, talking with three women in the house. Two of these women testified that she remained an hour. According to her own evidence, she felt unable to go on to where her husband was working, and returned home alone. She had made no outcry when the sexual act was being perr formed, nor did she make any reference to the crime during her’ visit to her neighbors. Two of the women at the house visited testified that she showed no signs of excitement; the third testified that she appeared to be nervous and excited. There were no marks of violence upon her person. Her clothing was not torn or disarranged. The alleged crime was committed at some time in the afternoon, but the hour does not appear.. Before dark the husband and a hired man returned to the house. The wife made no complaint at that time of the outrage iipon her. Shortly afterward the daughter of the accused and her husband and baby came on a visit and spent the night. The woman upon whom the rape is alleged to have been committed cooked supper for them, and after supper her husband and the son-in-law of the accused went to visit a neighbor, returning at about ten o’clock. They retired for the night, the husband and wife occupying one room and the daughter and son-in-law of the accused another, the two rooms being separated by a thin partition. The next morning the wife arose and prepared breakfast for the guests, who left about nine o’clock. During all this time she did not tell her husband or any one else of the outrage upon her. Sometime during that day, the exact hour not appearing definitely from the evidence, she told her husband what had occurred between her and the accused. Some of the witnesses testified that on the after-moon of the alleged outrage the husband came home before dark, and that his wife met him in the garden, where they for some time remained alone before going to the house. According to some of the witnesses, she then assisted in “cleaning out” under the house. The husband testified that he and the hired man did the work, but that she was “about.” No doctor was called in, nor does any examination of her person appear to have been made. The accused, in his statement, admitted having had sexual intercourse with her, but stated that it was without any resistance and with her full consent and acquiescence.

Under this state of facts we think the verdict of the jury finding the accused guilty was without sufficient evidence to support it. The law is well established, since the time of Lord Hale, that a man shall not be convicted of rape on the testimony of the woman alone, unless there are some concurrent circumstances which tend to corroborate her evidence. The offense of rape seems to be an exceptional one in this regard. The accused should not be convicted upon the woman’s testimony alone, however positive it may be, unless she made some outcry or told of the injury promptly, or her clothing was torn or disarranged, or her person showed signs of violence, or there were other circumstances which tend to corroborate her story. This rule appears to us to be a sound one. Without it, every man is in danger of being prosecuted and convicted on the testimony of a base woman in whose testimony there is no truth. Of course every woman, when she makes up her mind to prosecute for this offense, will testify that the sexual act was accomplished by force and without her consent. The man is powerless. He can not be sworn to testify in his own behalf, and he is at the mercy of the woman. Our people, be it said to their credit, reverence innocence and virtue in the female sex. When a charge of this sort is made, the people, and the jurors likewise, are apt to let their indignation get the better of their judgment and convict upon evidence which does not authorize it. It is therefore incumbent upon the courts to scrutinize with care the evidence in such cases. As was said by this court in Simmons v. State, 99 Ga. 699, 703, “For this reason it is held that in such cases the testimony of the person alleged to have been raped should always be scrutinized with care, and when there is much in the facts and circumstances in evidence to discredit her testimony, it should be deemed insufficient to sustain a verdict of guilty; and hence it is that courts of review, while generally reluctant to disturb a verdict where there is any evidence to support it, frequently set aside verdicts in cases of this character, even though supported by positive and direct evidence.” The law as to cases of this sort is fully laid down in the opinion of Hall, J., in Smith v. State, 77 Ga. 705, in Simmons v. State, supra, and in Innis v. State, 42 Ga. 481, and authorities cited. We therefore deem it unnecessary to make any further elaboration of the present case.

Judgment reversed.

All the Justices concur, except Fish, P. J., and Candler, J., who dissent.