1. The evidence strongly and without question shows that the defendant is guilty of rape as found by the jury.
2. It is the well established law of this state that it is not error for the court to exclude from the panel of jurors put upon the defendant in a capital felony case those who are opposed to capital punishment, as they would not be impartial jurors in such case.
3. It was not error for the court to fail to charge the law as to assault with intent to rape, where under the evidence and the defendant's own statement he was guilty of rape, as he admitted that he aided and abetted his companion in raping the victim.
4. It was not error for the court to permit the jury to disperse after returning its verdict and before the verdict was read and published, where counsel for the State and the defendant agreed to such procedure. The defendant, after keeping silent while his attorneys made the agreement, will not be heard thereafter to deny the authority of his counsel to make it.
5. The enumeration of error that the court erred in admitting certain photographs in evidence and making a certain statement is not substantiated by the record, as it does not show that either happened.
1. In his enumeration of errors the defendant alleges that the verdict is contrary to the evidence and without evidence to support it, and contrary to law and the principles of justice and equity. This contention is wholly without merit. The evidence shows that the defendant and Williams went to the home of the victim, which was in the country with no other home nearby, entered the home, robbed her of the money she had, then choked her, threatened to kill her, and dragged her into the woods where she was held by Williams while, according to the defendant, he attempted to have sexual relations with her but was unable to do so. The victim testified that the defendant did accomplish his purpose, that he then held her while Williams raped her, and then the defendant again raped her. The doctor who examined her shortly afterwards at the hospital, where she was brought by a neighbor, testified that there was male sperm in her vagina and that she was in a state of shock or hysteria. After raping the victim, Williams stripped her wedding ring and band from her finger, and the defendant and Williams tied her to a tree and left her in the woods. She released herself and went looking for her four-year old child, who was alone at home with her when the defendant and Williams had entered the house. She was picked up on the road by a friend, as was her child, who had been seen walking down the road. The evidence shows the cruel, inhumane, wholly unprovoked, dastardly crime of rape committed upon this helpless young woman by the defendant and his companion.
2. The enumeration of error alleging that the court refused to declare a mistrial on the ground that the court had excluded from the panel of 48 jurors each juror who was opposed to capital punishment, in violation of the Fifth and Sixth Amendments of the United States Constitution (Code 1-805, 1-806), has been settled adversely to the defendant's contention by full bench decisions of this court. Massey v. State, 222 Ga. 143 (5)
, 150 (149 SE2d 118
); Cobb v. State, 222 Ga. 733
, 737 (3) (152 SE2d 403
); Gunter v. State, 223 Ga. 290 (2) (154 SE2d 608)
, and cases cited.
3. Ground 3 enumerates as error the failure of the court to charge the jury the law with respect to assault with intent to rape. The victim testified that the defendant raped her twice and Williams raped her once, each aiding and abetting the other by holding her while the other raped her. The defendant admitted in his unsworn statement that he attempted to rape her twice, while Williams held her, and that he held her while Williams raped her. Under any theory of the evidence, the defendant was guilty of rape. If he actually raped her, as the victim testified, or if he aided and abetted Williams in raping her, he is guilty of rape, and consequently the court did not err in omitting to charge upon the subject of assault with intent to commit rape. Bailey v. State, 153 Ga. 413 (2) (112 SE 453). See also Whitley v. State, 188 Ga. 177, 178 (2) (3 SE2d 588), and cases cited.
The defendant contends that he did not acquiesce in this agreement, that it was not submitted to him, and he was not advised that his counsel was waiving his right to have the jury kept together. Obviously, the agreement was made in open court in his presence and was not objected to by him. After keeping silent in the presence of the court while his attorney made the agreement, he will not be heard thereafter to deny the authority of his attorney to make it. See Archer v. Clark, 202 Ga. 229 (1) (42 SE2d 924).
"It is a right of a defendant being tried for murder to have the jury kept together while hearing and considering his case ( Berry v. State, 10 Ga. 511
), but he may waive such right. Code 102-106; Sarah v. State, 28 Ga. 576
; 23 CJS, Criminal Law, 1014, 1064, 1355, 1387 . . . During the trial of the instant case but before it was submitted to the jury, and at a private conference between the trial judge, the solicitor general, and all the attorneys for the defendant, it was agreed that the jury might be dispersed for the night under instructions of the court, which were given. The defendant, having made such an agreement through his counsel, will not be heard to complain for the first time after the verdict, . . ." Buttersworth v. State, 200 Ga. 13
, 23 (36 SE2d 301
). See also Atlanta Newspapers, Inc. v. State of Ga., 216 Ga. 399 (4) (116 SE2d 580)
; Thompkins v. State, 222 Ga. 420 (3) (151 SE2d 153)
5. The enumeration of error alleging that the court erred in admitting photographs and stating in the presence of the jury, "so far there has been nothing in the case to refute what this lady says--that the thing began at her house out in the woods from her house," is without merit, as the record does not substantiate the allegations. On the contrary, the record shows that the photographs were not admitted in evidence, and the statement of the judge was made outside the presence of the jury.