ARGUED MARCH 15, 1955.
DECIDED APRIL 11, 1955. REHEARING DENIED MAY 11, 1955.
Rape. Before Judge Andrews. Fulton Superior Court. January 3, 1955.
Clyde W. Henley, William Hall, for plaintiff in error.
Paul Webb, Solicitor-General, Frank S. French, Charlie O. Murphy, Eugene Cook, Attorney-General, Rubye G. Jackson, contra.
1. Evidence on the trial of this case of the defendant charged with rape, showing that he raped another woman in the same city approximately four and two-thirds months after the offense for which he was on trial, and had overcome and accomplished the rape of his victims by a common method, was admissible for the purpose of identification and showing the state of mind, plan, motive, and scheme of the defendant, such as would constitute an exception to the general rule that, on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the defendant has committed another crime wholly independent from that for which he is on trial. even though it be a crime of the same sort, is irrelevant and inadmissible. Dorsey v. State, 204 Ga. 345 (2) ( 49 S.E.2d 886), and cases cited; Biegun v. State, 206 Ga. 618 (1) ( 58 S.E.2d 149).
2. The defendant's rights were not prejudiced by the court's instruction to the jury, to the effect that evidence as to the commission of another crime had been admitted "insofar only as it might tend to illustrate the defendant's state of mind"; and since the charge was not otherwise erroneous, no ground for a new trial is shown by reason of this charge. Dorsey v. State, supra.
3. The general grounds of the motion for new trial having been expressly abandoned by counsel for the defendant during the oral argument before this court, the trial court did not err in denying the defendant's motion for a new trial.
Judgment affirmed. All the Justices concur, except Wyatt, P. J., and Head, J., who dissent.
ARGUED MARCH 15, 1955 — DECIDED APRIL 11, 1955 — REHEARING DENIED MAY 11, 1955.
Frederick Mosley was tried for rape. The jury found him guilty without recommendation, and he was sentenced to be electrocuted. The defendant's amended motion for new trial was denied, and he excepted.
The first special ground of the amended motion for new trial complains that the court erred in permitting a witness for the State to testify concerning an alleged perpetration of the offense of rape on her by the defendant approximately four and two-thirds months after the alleged commission of the offense charged against the defendant by the indictment in this case, over objection. (a) the State was trying to put the defendant's character into issue by attempting to prove a similar offense which was distinct and separate from this case; (b) the defendant had not been charged with nor convicted of the alleged subsequent offense, and the alleged subsequent offense did not establish a modus operandi; (c) there was violence in the alleged subsequent offense and there was no violence in the present case.
The defendant contends (1) that the admission of the testimony was error, coupled with grave injury to his case; (2) that the testimony was material, prejudicial, and hurtful to the defendant, for the reason that it deprived him of a fundamental principle in our system of jurisprudence, intended to protect an individual charged with crime, and to insure him of a fair and impartial trial before an unbiased jury; (3) that the general character of the defendant and his conduct in other transactions is irrelevant unless he chooses to put his character in issue, and at the time of the admission of the testimony the defendant had not put his character in issue; (4) that the admission of the testimony was particularly inflammatory and extremely hurtful to the defendant's case, and is reversible error, as giving the jury an opportunity to infer that the defendant, a Negro man, was a persistent rapist of white women, and was in all likelihood guilty of the specific offense for which he was on trial: (5) that the testimony tended to show that the defendant had committed another crime wholly distinct, independent, and separate from that for which he was on trial, even though a crime of the same sort, and there being no logical connection between the two from which it could be said that proof of the one tended to establish the other.
The second special ground complains that the court erred in charging: "Gentlemen of the jury, this defendant is on trial for the particular offense charged in this bill of indictment that you will have out for your consideration, and on no other charge or charges. He is not on trial on account of any other alleged offense or offenses, and any evidence in this case with reference to any other alleged offense or offenses, if any, is admitted for the purpose of your consideration solely and only under the provisions of the law that, where knowledge, motive, intent, good or bad faith, or identity, or any other matter dependent upon a person's state of mind are involved as material elements in the offense for which he is on trial, evidence of the defendant's conduct with reference to the same or similar transactions about the same time is admissible for the consideration of the jury insofar only as it might tend to illustrate the defendant's state of mind on the subject involved, if you think it does so illustrate it. The court does not intimate or express to you any opinion whatsoever as to whether the defendant has had any other transaction at any time similar to the charge for which he is being tried in this bill of indictment. Whether he has or has not is a matter for you to determine, but if you believe that the defendant has had similar transactions, you will bear in mind that, in connection with such evidence, you are considering it solely with reference to the mental state or intent of the defendant insofar as the same is applicable or refers to or illustrates the charge embraced in this bill of indictment which you will have out with you for your consideration, and for no other purpose."
The criticism is: (a) that the charge was unsound as an abstract principle of law; (b) that the charge was also incorrect for the reason that on the trial of this case another woman, sworn as a witness for the State, testified in substance that the defendant raped her approximately four and two-thirds months after the alleged commission of the offense for which the defendant was on trial; that there was absolutely no logical connection between the offense for which the defendant was on trial and the rape alleged to have been committed by the defendant on another woman; that the charge was erroneous and incomplete, in that it permitted the jury to consider evidence of the rape alleged to have been committed by the defendant on another woman for the purpose of showing the defendant's intent in the alleged previous commission of a rape on the woman here involved, without instructing the jury that, before said testimony could be considered for such purpose, the jury must first determine that there existed some logical connection between the two alleged offenses from which it could be said that proof of the rape alleged to have been committed on another woman tended to establish the previous rape for which the defendant was on trial; (c) that the charge was confusing and misleading to the jury, for that on the trial the prosecution introduced documentary evidence, identified as State's Exhibit 5, being a two-count indictment, count one of which charged the defendant with the offense of burglary and count two of which charged him with the offense of receiving stolen goods, together with the defendant's plea of guilty to count two thereof and the sentence of the court thereupon entered; that the charge was calculated to mislead, and it did mislead, the jury into illegally considering said documentary evidence in determining the knowledge, motive, intent, good or bad faith, or identity of the defendant in the alleged commission of the offense for which he was on trial.
The circumstances surrounding the two occurrences, and the methods used by the defendant in accomplishing his purpose in each case were similar in the following particulars: The attacks occurred in a laundry pickup station, and in the case of the second assault the defendant bragged that he had raped another woman in a laundry within two weeks. In both cases he entered shortly after the place of business opened. In both cases he asked for the manager. In both cases he complained of mistreatment of a daughter. Both times he ascertained that the woman was alone. Both times he locked the door. Both times a pistol was used to threaten the victims into submission from fear. Both times he asked about money, and inspected the cash register. Both times he forced his victims to the back of the place of business. Both times he made his victims lie on the floor. Both times he told the victims to remove their panties. Both times he attempted to kiss his victims, once successfully. In both cases, after accomplishing his purpose, he made his victims remain in the bathroom until he left the place. Both witnesses testified that their assailant had a soft voice.