Opinion
15553.
SEPTEMBER 7, 1946.
Rape. Before Judge W. R. Smith. Cook Superior Court. April 27, 1946.
J. P. Knight, Jack Knight, and Smith Kelley, for plaintiff in error.
Eugene Cook, Attorney-General, H. W. Nelson, Solicitor-General, S. B. McCall, and Roscoe Thompson, Assistant Attorney-General, contra.
1. The evidence was sufficient to support the verdict.
2. It was not error to exclude the testimony of witnesses to the effect that they had seen the prosecutrix on specific occasions drink alcoholic beverages. This testimony as to particular transactions was not admissible, either to impeach the witness who had testified that the reputation of the prosecutrix for chastity and sobriety was good, or to discount or reflect upon the credibility of the prosecutrix.
No. 15553. SEPTEMBER 7, 1946.
Samuel Brown was indicted for rape against Carolyn Renfroe, a female under 14 years of age. The jury returned a verdict of guilty, recommended mercy, and fixed his punishment at one to five years in the penitentiary. The defendant made a motion for new trial on the general grounds, which was later amended by one special ground, and the exception is to the overruling of his motion for new trial as amended.
The prosecutrix was 13 at the time the rape was alleged to have been committed. She testified: That on January 27, 1946, she went to a picture show with her aunt, Mary Sue Porterfield, Richard Maddox, and her younger sister. She came out of the show to get some popcorn and saw Samuel Brown, the defendant, whom she had seen before but had never talked with previously. The defendant asked her to go with him. Mrs. Bennett, who ran the picture show, told her to go ahead with him around the block, she thought it would be all right. The prosecutrix went into the show to speak to her aunt about going with the defendant, and her aunt told her to come back when she went around the block. She got in the car with the defendant, and he went to the highway and turned north. She told him to take her back, but he drove on to an unpaved road and stopped the car. He told her to get in the back, and she refused, whereupon he grabbed her arm and pushed her in the back seat, and forcibly had sexual intercourse with her. One car passed during the time, but the defendant held his hand over her mouth to keep her from making an outcry. The next car that came was the one occupied by Mary Sue Porterfield and Richard Maddox, and they stopped in front of the car operated by the defendant. The defendant recognized Maddox and Mary Sue Porterfield and turned the prosecutrix loose; she got out of the car, and the defendant drove on.
Mary Sue Porterfield testified: That when they got out of the picture show Carolyn was not there, and she asked several people if they knew where she was, and one person said that he passed the car in which Carolyn and the defendant were. They went to the place mentioned and found the defendant parked and in the car on the side of the road. They got out of their car, and Carolyn got out of the car operated by the defendant and came to them. Carolyn was crying, and they "asked her had he done anything, and she said `Yes.'"
Dr. L. R. Hutchinson testified that on January 27 he was called to Lenox to see Carolyn Renfroe; that Carolyn was nervous and upset; that he examined her and she had a little bloody discharge from her vagina, and it looked like she had probably had an intercourse.
Mrs. Renfroe, mother of Carolyn, testified that, when Carolyn was brought home on the night of the alleged crime, she was crying and very nervous, and the witness called the doctor; and that Carolyn's undergarments, which were later introduced in evidence, were torn.
The defendant introduced several witnesses, who testified that they had seen Carolyn Renfroe at places where alcoholic beverages were sold, and at dances. Vernon Ross testified that the car which the defendant was driving had a burst hose, and it was necessary to put water in the radiator every few miles; and that the defendant's attention was called to the condition of the house before he left with Carolyn Renfroe. Several witnesses testified as to the good character of the defendant.
In his statement the defendant related: That on the night of January 27, he and three friends decided to go to the picture show, and when they arrived there Carolyn Renfroe was standing out in front of the show talking to some boys; that he asked her if she wanted to ride around a while, and she said she didn't know whether she could go or not, so she went in the picture show to ask, and came back and told him that she could not go; that the man's wife who runs the picture show told her to go ask again if she could go, so she went and asked again, and came back and said she could go; that when she got in the car he went to the highway and asked her where she wanted to go, and she directed him to the road where they went; that he stopped near a branch to put water in the radiator; that when a car stopped in front of them, Carolyn said that it was Mary Sue and Maddox, and she would go back with them, so he drove back to town. He stated that he was "loving her up a little," but denied having intercourse with her.
In rebuttal, the State offered the testimony of Richard Maddox, who stated that he and Mary Sue Porterfield went after Carolyn Renfroe when they did not find her after the picture show was over; that when they parked the car in front of the car driven by the defendant, Carolyn jumped out of the car and ran to them; that she was crying and tried to tell them what had happened; and that the defendant did not speak to them, but drove off.
W. H. Outler testified for the State in rebuttal that the reputation of Carolyn Renfroe in the community in which she lived for chastity and sobriety was good. Other witnesses testified that her reputation in the community was good.
1. Since under the undisputed evidence the prosecutrix was under 14 years of age at the time of the alleged crime and incapable, under our law, of consenting to the sexual act, the only question for the jury's decision was whether the act charged was committed by the defendant. The circumstantial evidence and the testimony of witnesses corroborated the prosecutrix, and the evidence amply authorized the verdict.
2. The amended ground of the motion for new trial sets out the testimony of W. H. Outler, who stated that the reputation of Carolyn Renfroe, the prosecutrix, for sobriety and chastity was good in the community in which she lived. The movant shows that thereafter he offered for submission to the jury the evidence of three witnesses, Ellen Noles, Sam Camp, and Albert Brown. The testimony of Ellen Noles was to the effect that she worked at Pine Grove Camp near Tifton; that Carolyn Renfroe came there two or three times; that she would drink wine, and would drink with the crowd that she was with; that there was a bunch of them and they would come there, would get what she considered drunk, and then go outside and get in cars; and that Carolyn "got full." Sam Camp testified that he saw Carolyn Renfroe at a dance at the Legion Hut in Adel, and that he saw her take one drink of whisky there. Albert Brown testified that he saw Carolyn Renfroe at the Old Plantation dance and he saw her take a drink of beer there.
The movant states that the evidence of the three witnesses was offered by him to impeach and discredit the evidence of the witness Outler. The court sustained the objection of the solicitor-general, that the testimony was inadmissible to discredit the reputation of Carolyn Renfroe by giving specific instances of drinking, and the evidence was excluded from the consideration of the jury. The movant claims that the evidence was admissible for the purpose of discrediting and impeaching the general reputation of Carolyn Renfroe as to her sobriety and chastity, and for the purpose of discounting and reflecting upon her credibility as a witness, and that its exclusion was prejudicial to his rights.
None of the witnesses whose testimony was excluded undertook to reflect on the reputation of Carolyn Renfroe as to chastity, and their testimony could not have impeached the testimony of the witness Outler that her reputation as to chastity in the community was good.
The contention that the evidence was admissible for the purpose of discrediting and impeaching the general reputation of Carolyn Renfroe as to her sobriety and chastity, and for the purpose of discounting and reflecting upon her credibility as a witness, is not well founded. The Code, § 38-1804, declares: "A witness may be impeached by evidence as to his general bad character. . . The particular transactions, or the opinions of single individuals, shall not be inquired of on either side, except upon cross-examination in seeking for the extent and foundation of the witness' knowledge." In Andrews v. State, 118 Ga. 3 ( 43 S.E. 852), where it was held that in a trial for murder the general character of the deceased for turbulence and violence may be shown, but specific acts are inadmissible, the court stated the reason for such inadmissibility in the following language: "The general character of the deceased for turbulence or violence can be shown by his neighbors generally; the State and the accused alike are put on notice that such general character may become an issue in the trial. But no one was bound to anticipate that the specific instance inquired about would be made the subject of investigation. A specific act does not necessarily tend to establish one's general character. The single transaction may have been exceptional, unusual, and not characteristic of the deceased."
Even in cases where the female alleged to have been raped is of the age of consent and where her testimony is sought to be impeached by proof of bad repute as to lewdness, evidence of specific acts of unchastity are not admissible. Black v. State, 119 Ga. 746 ( 47 S.E. 370); Wheeler v. State, 148 Ga. 508 ( 97 S.E. 408); Latimer v. State, 188 Ga. 776 ( 4 S.E.2d 631).
Testimony as to specific instances of the drinking of alcoholic beverages by the prosecutrix was inadmissible to impeach her testimony as to the charge against the defendant. Nor would evidence of specific instances of the prosecutrix drinking some alcoholic beverage be admissible to impeach the witness who testified that her reputation for sobriety was good. The evidence was properly excluded.
Judgment affirmed. All the Justices concur.