Opinion
34361.
DECIDED JANUARY 24, 1953.
Assault with intent to rape; from Fulton Superior Court — Judge Wood. September 12, 1952.
Vester M. Ownby, for plaintiff in error.
Paul Webb, Solicitor-General, Wm. Hall, Charlie O. Murphy, contra.
1. Evidence forming a part of the res gestae of the offense will not be rejected because it incidentally tends to show the defendant's guilt of an independent criminal transaction.
2. The testimony here laying the foundation for the introduction of a prior confession of the defendant was sufficient to authorize its admission over the objection that the alleged confession was obtained by duress.
3. An affidavit of a witness made previous to his testimony and in contradiction thereof may be admitted for purposes of impeachment, a proper foundation first being laid.
4. The charge of the court on the subject of reasonable doubt was without error.
5. The evidence authorized the verdict, and, no error of law appearing, the judgment overruling the motion for a new trial is hereby affirmed.
DECIDED JANUARY 24, 1953.
Jack Elliott was indicted, tried, and convicted in the Superior Court of Fulton County of assault with intent to rape. Upon the trial, the prosecuting witness testified: that, as she was waiting for a taxi about dusk on the evening of August 1, 1951, the defendant and one Bobby Laracy drove by and offered to take her home; that she at first refused, but they pulled her into the car; that, after they had driven a short distance, she suspected their intentions and tried to reach over Laracy to open the right door, but Laracy knocked her to the floorboard, blackening her eye; that the defendant then drove to a place in the woods where the grappled with her, jerking her out of the car and breaking her ankle; that Laracy then took out the back seat and laid it on the ground; that both men told her she would have to have intercourse with them; that she fought them for two or three hours, was beaten in the back, stomach and face, and her clothes were ripped off; that she finally prevailed on them to stop by telling them she had a venereal disease; that they took her to a spot opposite Fort McPherson and pushed her out of the car; and that a soldier later drove her home. The witness was temporarily hospitalized the next day and her leg put in a cast. There was corroborative testimony that her eyes were blackened, her face scratched and her back raw; that felt and hair substance such as would come from an automobile seat were found at the place indicated, although the ground was too rocky for tracks; that the defendant, when arrested eight days later, had scratches on his hands and arms; that both the defendant and Laracy made sworn statements to the arresting officers substantially like that of the prosecuting witness, although at first denying the charge; and that Laracy when tried on a similar charge in the juvenile court reaffirmed his statements and concurred with the testimony of the prosecutrix.
The defense introduced witnesses who testified to the bad character of the prosecutrix. Laracy, called as a witness for the State, repudiated his statement and testified that he, the defendant, and another witness, with two other boys, were in the car when the prosecutrix asked them to drive her to Fort McPherson, that they did so and left her at the gate, where she informed them she had a date with a soldier.
The defendant upon conviction filed a motion for new trial, and later amended it by adding six special grounds, one of which was disapproved by the trial court. The overruling of the amended motion is assigned as error.
1. The prosecutrix on direct examination testified as to the details of the struggle with her assailants after they had dragged her from the car in the woods, and testified that at one point the defendant hit her in an attempt to force her to commit acts amounting to sodomy. Objection to this testimony was made on the ground that it sought to prove a separate and distinct offense.
The testimony complained of related to acts which were a part of an assault made for the purpose of obtaining sexual gratification, and which were, in point of time and general purpose, intimately bound up with other acts to which the prosecutrix also testified. Where the independent criminal act is so near in point of time and general purpose as to form a part of the res gestae — as where the defendant shot a third person and immediately thereafter shot his wife ( Lampkin v. State, 145 Ga. 40 (1), 88 S.E. 563) — testimony relating thereto is admissible. And in sex offenses generally, testimony as to the defendant's attitude and state of mind is more readily admissible than in other cases. Potts v. State, 86 Ga. App. 779 (2) ( 72 S.E.2d 553); Frank v. State, 141 Ga. 243 (2a) ( 80 S.E. 1016). This contention is without merit.
2. The sworn confession of the defendant was objected to on grounds of self-crimination and duress in obtaining the same. Confessions, if made voluntarily without hope of benefit or fear of injury, are admissible under Code § 38-411; and the fact that the confession is in affidavit form does not render it inadmissible as violating the constitutional inhibition against self-crimination. Riley v. State, 180 Ga. 869 ( 181 S.E. 154); Russell v. State, 196 Ga. 275 (2, 3) ( 26 S.E.2d 528).
As to the issue of duress, the arresting officer first stated without objection: "Before I talked with him neither myself nor anyone in my presence had made any threats against him or offered him any reward or threatened him in any way, and any statement that he made was freely and voluntarily made without hope of reward or fear of punishment." The defendant denied this in his statement to the jury, whereupon the officer, recalled, testified in part as follows: "During the time that I was handling this investigation I never did curse either one of these boys or double up my fist, at either one of them, or threaten either one of them. I don't ever tell a man that if a case is made I am going to see that he goes to the chain gang. I did not tell him that I would help him get out if he signed the statement, didn't promise him anything. The statement was typed in the course of the investigation procedure. He said he would be glad to make a statement. I didn't tell Jack Elliott that I would try to get him off if he signed the statement and didn't tell him that he would get a long time if he didn't. He read the statement himself and then signed it. Charley Withers was present, the one that took the statement. . . I didn't dictate it and never use the word damned liar to anyone when I am making an investigation. We take statements for our records. It is never compulsory but a witness is asked if he wants to make a statement. He made a statement of his own accord."
It will be noted that the preliminary testimony, laying the foundation for the admission of the confession, substantially follows the rule laid down in Lemon v. State, 80 Ga. App. 854, 857 ( 57 S.E.2d 626), and that the rebuttal testimony was both positive and detailed. Under this testimony the court did not err in admitting the confession in evidence.
3. Code § 38-414 provides as follows: "The confession of one joint offender, or conspirator, made after the enterprise is ended, shall be admissible only against himself." It appears from the record, however, that the initial testimony regarding the alleged confession of the codefendant was in the main brought out in cross-examination of the arresting officer by counsel for the defendant; that the State then placed Laracy on the stand and, after he had denied his and the defendant's guilt, confronted him with the sworn confession for purposes of impeachment. At the close of its evidence, the State tendered the confession and the defendant objected as follows: "I object to it, your honor. It was obtained under duress, and was not without fear of injury or hope of reward. It was to help out in his case, he being an accomplice in the same case." There being conflicting evidence as to whether or not the confession was voluntarily made, the admission of the document was proper as against the objection made, and special ground 4, complaining thereof, is without merit. See Code, § 38-1803; Owens v. State, 139 Ga. 92 (2) ( 16 S.E. 860).
4. Special grounds 5 and 6 complain of the failure of the court to charge without request that the burden of proof is upon the State to satisfy the minds of the jury beyond a reasonable doubt of the guilt of the defendant as charged in the indictment, and to define "reasonable doubt." The court did charge as follows: "Now, this defendant having filed his plea of not guilty to this charge, he enters upon the trial of this case with the legal presumption of innocence in his favor and that presumption remains with him throughout the trial of this case unless and until the State by the introduction of evidence has convinced your minds beyond a reasonable doubt as to his guilt." An identical charge was approved as sufficient in McDuffie v. State, 54 Ga. App. 261 ( 187 S.E. 672), over the same objection. Nor was it error, in the absence of request, to fail to define the term "reasonable doubt." Paulk v. State, 148 Ga. 304 (2) ( 96 S.E. 417); Jordan v. State, 16 Ga. App. 393, 400 ( 85 S.E. 455). These grounds are without merit.
5. The verdict was authorized by the evidence and, no error of law appearing, the judgment overruling the motion for a new trial will not be disturbed.
Judgment affirmed. Gardner. P. J., and Carlisle, J., concur.