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Rape. Troup Superior Court. Before Judge Boykin. November 30, 1959.
HEAD, Presiding Justice.
1. The verdicts are supported by evidence, and it was not error to overrule the general grounds of the motions for new trial.
2. Generally, every person against whom a bill of indictment is found shall be tried at the term of the court at which the indictment is found, "unless the absence of a material witness or the principles of justice should require a postponement of the trial." Code 27-2002. In the present cases, in so far as the motion for continuance was based upon the absence of certain nonresident character witnesses for one of the defendants, the motion did not conform to the requirements of the law. Code 81-1410. Whether or not the "principles of justice" ( 27-2002) would otherwise require a postponement, and whether or not time should have been granted for the filing of a petition for change of venue, are questions that do not require any ruling by this court, since a new trial must be granted for the reason hereinafter set out, and the same questions under similar facts can not arise upon a retrial of the cause. See Smith v. State, 215 Ga. 362 (3) (110 S. E. 2d 635).
3. There was no evidence which would authorize a charge on the law applicable to an assault with intent to rape.
4. If the prosecutrix yielded through violence and intimidation by any of the defendants, as testified by her, it was not essential that the State show the use of actual physical force and violence by the defendant George Alford, Jr. Vanderford v. State, 126 Ga. 753 (5) (55 S. E. 1025).
5. It is not the intent and purpose of the act of 1956 (Ga. L. 1956, p. 796; Code, Ann., 27-210) to require a vain or useless act. Where a defendant is indicted in a capital case within 72 hours after his arrest (as appears from the records in the present cases), the incarceration is by reason of the indictment and not the warrant, and the act of 1956 could have no application, since a committal court would have no jurisdiction to determine whether or not there was probable cause for indictment after the indictment had already been returned.
See Johnson v. Plunkett, 215 Ga. 353 (110 S. E. 2d 745).
6. Under the evidence in these cases, it was not error to admit the photographs identified in ground 6 of the amended motions for new trial. Johnson v. State, 158 Ga. 192, 197 (123 S. E. 120); Russell v. State, 196 Ga. 275 (26 S. E. 2d 528); Anderson v. State, 206 Ga. 527 (57 S. E. 2d 563).
7. Ground 7 of the amended motions was properly overruled.
8. The court erred in charging the jury as contended in ground 8.
The defendants were indicted for the offense of rape. They were tried jointly, were convicted, and sentenced to be electrocuted. Each excepts to the denial of his motion for new trial as amended (the grounds being the same in each case). Only the assignments of error made in grounds 8 and 9 of the amended motions require any elaboration.
In ground 8 error is assigned on the following extract from the charge of the court: "Gentlemen, there has been some evidence offered here as to the character of Ara Louise Butler, the defendants insist that she is a woman of bad character, a lewd woman. Well, gentlemen, rape may be committed upon a lewd woman, but you may consider the evidence of Ara Louise Butler as to whether or not she is a lewd woman in passing upon what credibility you may give to her testimony and whether or not she consented to the act. If you believe beyond a reasonable doubt that the crimes of rape were committed upon Ara Louise Butler on the occasion in question, and if it is established beyond a reasonable doubt, then, it would be your duty to convict, notwithstanding the evidence of bad character, should you find that she was a woman of bad character or a lewd woman. Now, you understand, gentlemen, that the State denies the charge of the defense that the female was a lewd woman, and if you find that she was a lewd woman, then that testimony you may consider in the manner that I have instructed you and for the purpose that I have instructed you."
In Seals v. State, 114 Ga. 518, 520 (40 S. E. 731, 88 Am. St. Rep. 33) it was held: "Independently of the question of the woman's credibility as a witness, the jury may properly consider evidence of her previous bad character for chastity, in determining whether or not she really consented to the sexual intercourse which she testifies was had against her will; and in a case like the present, where practically the only defense relied on was that no force whatever was used, the jury should be accurately instructed to the effect above indicated. The court not only failed to do this, but charged to the contrary; and consequently, as above stated, we have no alternative except to order a new trial." See also Towns v. State, 149 Ga. 613, 616 (101 S. E. 678); Walker v. State, 151 Ga. 341 (106 S. E. 547); Thompson v. State, 160 Ga. 520, 524 (128 S. E. 756); Byrd v. State, 187 Ga. 328, 334 (200 S. E. 671).
The rule stated in Seals v. State, supra, is peculiarly applicable in the present case, in that the sole defense was that the prosecutrix consented, and that this consent was procured for a monetary consideration. The extract from the charge excepted to in ground 8 was erroneous; misleading, and confusing, and requires the grant of a new trial.
Ground 9 assigns as error the following extract from the charge: "The law says, gentlemen, that a witness may be impeached by disproving the facts testified to by him or her. That is one of the methods of impeaching a witness. Another method of impeaching a witness is that a witness may be impeached by contradictory statements previously made by him or her as to matters relevant to his or her testimony in the case. When thus impeached the witness may be sustained by proof of general good character or by other corroborating evidence to the effect that what was testified to by the witness is true."
It is the general rule that instructions, even though abstractly correct, should not be given unless authorized by the evidence, or in criminal cases by the evidence or by the statement of the defendant; and when such an unauthorized instruction is given, if it should be confusing or misleading to the jury, a new trial will be required. Reeves v. State, 196 Ga. 604, 614 (27 S. E. 2d 375). In the present case the defendants relied upon their statements and did not introduce any testimony. There was no testimony of good character by any witness to sustain any witness offered by the State. It therefore follows that, while the charge excepted to in this ground was erroneous, it was not harmful to the defendants. See Hart v. State, 93 Ga. 160 (20 S. E. 39); Kelly v. State, 118 Ga. 329 (45 S. E. 413); Jones v. State, 193 Ga. 449 (18 S. E. 2d 844); Rountree v. Todd, 210 Ga. 226, 230 (78 S. E. 2d 499).
Judgment reversed. All the Justices concur.
Wright Lipford, Solicitor-General, E. W. Fleming, Eugene Cook, Attorney-General, Rubye G. Jackson, Assistant Attorney-General, contra.
James E. Weldon, Wilson P. Darden, L. M. Wyatt, for plaintiffs in error.
Friday May 22 23:55 EDT

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