Dade v. State

Court of Appeals of Georgia

Dade v. State

365 S.E.2d 543, 185 Ga. App. 748, 1988 Ga. App. LEXIS 219

CourtCourt of Appeals of Georgia

DecidedFebruary 4, 1988

Docket75841

StatusPublished

This text of 365 S.E.2d 543 (Dade v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dade v. State, 365 S.E.2d 543, 185 Ga. App. 748, 1988 Ga. App. LEXIS 219 (Ga. Ct. App. 1988).

Pincite

Opinion

Banke, Presiding Judge.

The appellant was tried for kidnapping, armed robbery, and rape but was found guilty only of rape. On appeal, his primary contention is that his acquittal of the kidnapping charge was inconsistent with and repugnant to his conviction of the rape charge. While the appellant recognizes that the inconsistent verdict rule was abolished in criminal cases in Milam v. State, 255 Ga. 560 (2) (341 SE2d 216) (1986), he contends that the Milam decision should not be given retroactive effect. Held:

1. Pretermitting whether the Milam decision should be given retroactive effect, it is clear that the jury’s verdicts in the present case were not inconsistent. “ ‘The jury is entitled to believe a part of the testimony of a witness and disbelieve other parts.’ (Cit.) ‘The determinative factor in judging whether jury findings are inconsistent is “whether the acquittal of one charge necessarily includes a finding against a fact that is essential to conviction for the other charge.” (Cit.)’ ” Hines v. State, 254 Ga. 386, 387 (329 SE2d 479) (1985). Accord Cowart v. State, 177 Ga. App. 107 (338 SE2d 534) (1985).

The appellant argues that by acquitting him of the kidnapping charge, the jury necessarily determined that he had not held the victim against her will and that this determination cannot be reconciled with a determination that he had intercourse with her “forcibly, and against her will.” OCGA § 16-6-1 (a). This argument, however, assumes a definition of the offense of kidnapping which is incomplete [749]*749and therefore erroneous. “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” OCGA § 16-5-40 (a). (Emphasis supplied.) Obviously, the jury in the present case was not required to find that the appellant had abducted the victim in order to find that he had had intercourse with her against her will. Consequently, the verdicts were not in irreconcilable conflict.

Decided February 4, 1988. O. L. Collins, for appellant. Sam B. Sibley, Jr., District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

2. The evidence, construed most favorably towards the verdict, was sufficient to have enabled a rational trier of fact to find the appellant guilty of rape beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Banke, Presiding Judge.

The appellant was tried for kidnapping, armed robbery, and rape but was found guilty only of rape. On appeal, his primary contention is that his acquittal of the kidnapping charge was inconsistent with and repugnant to his conviction of the rape charge. While the appellant recognizes that the inconsistent verdict rule was abolished in criminal cases in Milam v. State, 255 Ga. 560 (2) (341 SE2d 216) (1986), he contends that the Milam decision should not be given retroactive effect. Held:

1. Pretermitting whether the Milam decision should be given retroactive effect, it is clear that the jury’s verdicts in the present case were not inconsistent. “ ‘The jury is entitled to believe a part of the testimony of a witness and disbelieve other parts.’ (Cit.) ‘The determinative factor in judging whether jury findings are inconsistent is “whether the acquittal of one charge necessarily includes a finding against a fact that is essential to conviction for the other charge.” (Cit.)’ ” Hines v. State, 254 Ga. 386, 387 (329 SE2d 479) (1985). Accord Cowart v. State, 177 Ga. App. 107 (338 SE2d 534) (1985).

The appellant argues that by acquitting him of the kidnapping charge, the jury necessarily determined that he had not held the victim against her will and that this determination cannot be reconciled with a determination that he had intercourse with her “forcibly, and against her will.” OCGA § 16-6-1 (a). This argument, however, assumes a definition of the offense of kidnapping which is incomplete [749]*749and therefore erroneous. “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” OCGA § 16-5-40 (a). (Emphasis supplied.) Obviously, the jury in the present case was not required to find that the appellant had abducted the victim in order to find that he had had intercourse with her against her will. Consequently, the verdicts were not in irreconcilable conflict.

Decided February 4, 1988. O. L. Collins, for appellant. Sam B. Sibley, Jr., District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

2. The evidence, construed most favorably towards the verdict, was sufficient to have enabled a rational trier of fact to find the appellant guilty of rape beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

365 S.E.2d 543, 185 Ga. App. 748, 1988 Ga. App. LEXIS 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dade-v-state-gactapp-1988.

Opinion

Related

Cite This Page — Counsel Stack