1, 2. A request to charge must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence.
3, 4. The charges complained of under grounds 3 and 4 of the amended motion were not error.
5-7. The references in the charge of the court to the defendant's statement, though the defendant made no unsworn statement, while inapt, were not injurious to the defendant.
9. Evidence that a person was excited, and talked faster than usual, is not subject to the objection that it is hearsay evidence.
10. In a trial for rape, evidence of the general character of the female for chastity is admissible. But evidence of specific acts with other men is not admissible, nor can she be cross-examined as to such; and the rule is not changed by the accused admitting the intercourse and claiming it to have been with consent of the female.
11. The evidence was sufficient to authorize the verdict.
Luke Teague was tried for the offense of rape and sentenced from 1 to 2 years. Lynwood Eaton was also indicted for rape upon the same female. Though each was separately indicted, by agreement of counsel, they were tried at the same time.
The evidence for the State showed that Mildred Watkins, age 17, the young lady alleged to have been raped, together with Ora Belle Stancil, a girl about the same age who was going to spend the night with her, and a young man named Brady Little, drove up in an automobile and parked at Phil's Drive In, an eating place in Jasper, Pickens County. It was about eleven p.m. After ordering three milk shakes and before they were served, the two young ladies went into the building. In the eating place at that time were the two accused, and also Paul Coleman and Bobby Gene Gaddis, whose ages ranged from 17 to 20 years. One of them asked the two girls to ride around with them but they declined. As the two girls left the building, two or three of these young men pulled and pushed Mildred Watkins into their car, which was parked just in front of the door. They also tried to put the other girl in their car, but turned her loose. When they drove off with Mildred Watkins, the other girl returned to the car where Brady Little was, and they tried to follow the car in which the four boys had driven off with Mildred Watkins, but were unable to do so.
Mildred Watkins testified that, after driving off, they went south on the highway and proceeded into Cherokee County to a point just above Keithsburg, where they turned around and returned to Jasper. She testified that, while they traveled from the designated points, each of the four boys had intercourse with her forcibly and against her will. She related her struggle to prevent them from removing her underclothes, her efforts to resist each, and how and in what manner she was held as each assaulted her. She testified that the assault of the two here on trial took place in Cherokee County.
Upon the return to Jasper three of the boys got out of the car near the eating place from which they left, and one of them drove her home arriving there about midnight. The young lady who was to spend the night with her, and the young man who had previously gone to the eating place with her, were parked across the street from her home. She went to the car where they were, and then she and the young lady went into her home where she reported the occurrence to her mother who so testified. She was immediately carried to a hospital and examined by a physician. She testified that she had bruises on her arms and legs, that three of her fingernails were broken off and one of them broken into the quick, and the next morning there was a knot on her head. The doctor testified that she was hysterical, had blood on her underclothes, thighs, and lower part of the abdomen, and had a bloody discharge from the vaginal canal, with abrasions of the linings and bruises just inside the vaginal vault.
The defense was that she voluntarily got into the car and that the defendant's intercourse with her was by consent.
Wood & Tallant, Phil M. Landrum, H. G. Vandiviere, and H. L. Buffington Jr., for plaintiff in error.
Eugene Cook, Attorney-General, James T. Manning, Solicitor-General, J. R. Parham, Assistant Attorney-General, and William A. Ingram, contra.
ATKINSON, Presiding Justice. (After stating the foregoing facts.) 1. Ground one of the amended motion alleges error in the refusal of the court to charge a written request, as follows: "Rape is not complete if the element of force is lacking, although the sexual act may have been done against the will of the female. It must not only be against her will, but force must be used to overcome her resistance and her will. If she consents to the sexual act at any time, the crime of rape cannot be found against the defendants. There can be no rape if there be any kind of consent. It matters not how this consent was obtained, or how reluctantly that consent might be given, if there was the least part of consent on the part of the woman during the transaction, then a person charged with rape could not be convicted of rape. She may express her consent by her conduct at the time of the intercourse, and even though she may verbally proclaim unwillingness, consent may be implied from her action. A mixed resistance or a merely equivocal submission will not do. There may be a slight physical resistance even though there is a mental willingness to submit. Resistance must not be mere pretext but must be up to a point where it is overpowered by actual force."
A portion of this request was taken from Lancaster v. State, 168 Ga. 470 (9) (148 S. E. 139), and another portion from Avery v. State, 12 Ga. App. 562 (4) (77 S. E. 892). The court charged: "Rape is the carnal knowledge of a female forcibly and against her will . . . The State must likewise prove that the carnal knowledge, if any, or sexual intercourse, if any, was accomplished by force and against the will and without the consent of the female." The latter part of this requested charge, to wit--"She may express her consent by her conduct at the time of the intercourse, and even though she may verbally proclaim unwillingness, consent may be implied from her action. A mixed resistance or a merely equivocal submission will not do. There may be a slight physical resistance even though there is a mental willingness to submit. Resistance must not be mere pretext but must be up to a point where it is overpowered by actual force"--is designed to cover the law of rape where there is apparent resistance but in fact consent. There is no evidence that would have required the court so to charge. The accused sought to establish that his intercourse with the female was, from its inception, by consent; and the female testified that it was by force, and against her will and consent for the duration of the act. A request to charge must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence. Lewis v. State, 196 Ga. 755 (3) (27 S. E. 2d, 659); Rogers v. Manning, 200 Ga. 844 (2) (38 S. E. 2d, 724).
2. Exception is taken to the refusal of the court to charge the following written request: "Delay of the female alleged to have been raped in making complaint of an alleged criminal assault will ordinarily afford ground for discrediting the female as a witness. But such delay may, in a given case, be satisfactorily explained to the jury. It is the jury's sole and exclusive function to determine whether or not the female is to be believed. On this question it is for you to determine whether a complaint, if any, was made, and if so, was the delay satisfactorily explained."
There is no evidence which would have required a charge on delay in making a complaint. The evidence showed that when she was released in front of her home, the boy and girl with whom she had previously been that night, were parked across the street. When she got out of the car she was crying. The girl came to where she was, then they both, after talking to the boy a few minutes, went into her home where she reported the occurrence to her parents. There is no evidence of a delay in making complaint. A complaint, in corroboration of her testimony that she was raped, should be made "recently after the perpetration of the offense . . . to those to whom complaint of such an occurrence would naturally be made." Thomas v. State, 144 Ga. 298, 301 (4) (87 S. E. 8).
3. The following excerpt from the charge was not error: "I charge you, gentlemen, that the State must likewise prove that the carnal knowledge, if any, or sexual intercourse, if any, was accomplished by force and against the will and without the consent of the female alleged to have been raped."
4. The following excerpt from the charge was not error: "On the question of corroboration, you may look to all of the facts and circumstances of the case and see if the prosecutrix made an outcry at the time the crime was committed, if one was committed; or whether or not she made a report soon thereafter; and whether or not her clothes were torn; or her body or person bruised or bleeding; or her private parts injured or bloody; or if there was a struggle; and then determine whether or not her testimony has been corroborated sufficiently to convince your minds beyond a reasonable doubt as to the guilt of the accused."
5-7. Each of these grounds of the amended motion alleges error on account of the court making reference to the "defendant's statement" in charging upon reasonable doubt, reconciling the conflict in evidence, and on the subject of the necessity of corroboration of the female. The accused made no unsworn statement, but in the joint trial each was sworn and testified in behalf of the other. In each of the instances, the effect of the charge on the subjects being covered was that consideration might be given to the defendant's statement. While the charge in aptly referred to the defendant's statement, from a careful examination of each we are unable to find where, by this reference, the jury could have been misled or confused, or the accused injured. Cooley v. State, 152 Ga. 469 (3)
(110 S. E. 449); Lovell v. State, 42 Ga. App. 440 (3)
(156 S. E. 704); Williams v. State, 81 Ga. App. 748 (2)
(59 S. E. 2d, 743). "Where a plaintiff in error brings a case to this court, the burden is upon him to show error which is injurious to his cause." Reece v. State, 208 Ga. 165
, 167 (66 S. E. 2d, 133). The facts here differ from those in Staten v. State, 140 Ga. 110 (2)
(78 S. E. 766).
8. Where the female testified that two of the boys removed panties, which preceded the intercourse of each of the four, and that she put them back on before she was returned to her home, it was not error to permit their introduction in evidence, since the State was entitled to show the blood stains there on as illustrating her physical condition.
9. The ninth ground was abandoned. Under the tenth ground error is assigned as to the admission of testimony. Brady Little, the young man who drove the two girls to the eating place where the victim was taken away by the four boys, testified: "When Miss Stancil came back to my car . . . Well, she was excited. I don't know how to tell you that she was excited, but she was talking fast, faster than usual; and after she came back there, I left immediately to follow that car." This was not subject to the objection that it was hearsay, or for any other reason assigned.
The offense of rape is not confined to a virtuous victim. It matters not how loose sexually a female may be, rape can be committed upon her. To refute her testimony that the act was forcible, without her consent, and against her will, in practically all jurisdictions it is permissible to show her general character for lewdness, as evidence seeking to disprove her statement that the act was forcible and against her consent. In Camp v. State, 3 Ga. 417 (3), an assault-with-intent-to-rape case, it was held: "Evidence that the person charged to have been injured is in fact a common prostitute, or . . . that she is a woman of ill fame, may be submitted to the jury, to impeach her credibility, and disprove her statement that the attempt was forcible and against her consent." In the opinion it was said: "It seems that testimony of specific acts of lewdness is not admissible." In Seals v. State, 114 Ga. 518 (40 S. E. 731), a rape case, it is said: "The whole law of this subject was pithily stated by Judge Nisbet in a single sentence in the case of Camp v. State, 3 Ga. 422. He said: 'The fact of assent may, in reason, be well left to the jury, upon proof of ill or evil fame.' " The decision then quotes 2 Bish. Cr. Pr. (3d ed.), 965: "One on trial for this crime [rape] may bring forward, in his defense, the bad reputation for chastity--not particular acts--of the complaining witness." Black v. State, 119 Ga. 746 (47 S. E. 370), was a rape case. While the decision does not state what defense was interposed, the original record shows that the defendant claimed the woman had consented. It quotes 3 Gr. Ev. (16th ed.), 214, as follows: "The character of the prosecutrix for chastity may also be impeached; but this must be done by general evidence of her reputation in that respect, and not by evidence of particular instances of unchastity. Nor can she be interrogated as to a criminal connection with any other person, except as to her previous intercourse with the prisoner himself; nor is such evidence of other instances admissible." All of the foregoing cases were cited with approval in Wheeler v. State, 148 Ga. 508 (1) (97 S. E. 408). Though the decision relates none of the evidence, the original record shows that the accused admitted the intercourse and said the female consented. This rule was again stated in Smiley v. State, 156 Ga. 60 (3) (118 S. E. 713); Latimer v. State, 188 Ga. 775 (1) (4 S. E. 2d, 631); Andrews v. State, 196 Ga. 84 (5) (26 S. E. 2d, 263).
It is clear that this court has adopted the foregoing rule, and follows the weight of authority from other jurisdictions, which permits only the showing of general character for lewdness, and does not allow evidence of specific acts of lewdness with other men or a cross-examination of the female as to such acts. There are some jurisdictions which hold to the contrary, and permit evidence of specific acts with others in all cases of rape, and without regard to the defense interposed, but the weight of authority is otherwise. See 52 C. J. 1080, 109; 44 Am. Jur. 960, 92; 14 L. R. A. (N. S.) 714, 720; L. R. A. 1916 B. 965, 966; 140 A. L. R. 380, 382.
Rape must be forcible and against the will of the female. If there is consent, there is no rape. Evidence of general reputation for lewdness is admitted for the purpose of illustrating the probability of consent, and to negative the non-consent and force. Though an accused might deny intercourse, defend on the ground of mistaken identity, or plead an alibi, still he would be entitled to show general reputation for lewdness, as the jury might disbelieve his defense, yet they must still find that the act was without consent. Non-consent is an element of the crime of rape irrespective of the defense interposed, and the fact that the accused defends on the ground of consent should not change the rules of evidence so as to open the investigation to proof of specific acts. As was said in Black v. State, 119 Ga. 748 (supra),"If proof of specific acts of lewdness were admitted, it would 'not only involve a multitude of collateral issues, but an inquiry into matters as to which the prosecutrix might be wholly unprepared, and so work great injustice.' " To permit evidence of specific acts, would also open the gates of circumstantial evidence as to every act and statement of the female in her past life. Any indiscreet conduct or misconstrued statement could be implied as an admission of, or as being agreeable to, sexual relations. At times even her silence could be given a sexual significance. 11. Grounds fourteen and fifteen of the amended motion are based on the general grounds. The evidence was sufficient to authorize the verdict.
Judgment affirmed. All the Justices concur, except Duck- worth, C. J., and Almand, J., who dissent upon the ground pointed out in the dissent in Andrews v. State, 196 Ga. 84 (5), and Head, J., who dissents.