Sewell v. State

Court of Appeals of Georgia

Sewell v. State

4 S.E.2d 475, 60 Ga. App. 606, 1939 Ga. App. LEXIS 102

CourtCourt of Appeals of Georgia

DecidedSeptember 13, 1939

Docket27775

StatusPublished

Cited by1 cases

This text of 4 S.E.2d 475 (Sewell 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

Sewell v. State, 4 S.E.2d 475, 60 Ga. App. 606, 1939 Ga. App. LEXIS 102 (Ga. Ct. App. 1939).

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Opinion

MacIntyre, J.

Allen Sewell was charged with rape of his stepdaughter, a girl alleged to be less than 13 years of age. He was convicted of a misdemeanor. His motion for new trial was overruled, and he excepted. The stepdaughter testified that the carnal knowledge was forcible and against her will. A deputy sheriff, who had the defendant in custody under the charge in question, and who was transferring him from the jail in Gainesville, Georgia, to the jail in the county where the alleged crime was committed, testified that the defendant told him that he had intercourse with his stepdaughter two or three times, “but she was willing.” The girl’s grandmother testified as to her physical condition on the same night after the alleged rape, and the mother of the girl took her to the doctor the next day. Another woman testified that she was present at the examination by the doctor, and testified as to the girl’s physical condition at that time. The defendant, in effect, denied all criminal acts alleged in the indict[607]*607ment. The evidence for the State tended to show that the girl was between 12 and 13 years of age; and of course, if this was true, she was incapable of consenting. Code, § 26-1303. The defendant in his statement to the jury said that she was 17 years of age. He contended, first that the girl’s testimony was impossible; second, that the girl’s testimony was not sufficiently corroborated; third, that the evidence did not authorize the verdict.

Conceding that the testimony of the female in a case of rape, where she is capable of consenting, must be corroborated, “the only corroboration necessary in a case where the woman is an imbecile [or a child under 14 years of age] incapable of consenting is proof of facts or circumstances tending to sustain the testimony of the woman as to acts of sexual intercourse with the defendant” (Smith v. State, 161 Ga. 421, 131 S. E. 163); and if in the instant case there was sufficient evidence from which the jury were authorized to find that the confession to the deputy sheriff, referred to the transaction charged in the indictment, it was sufficient corroboration, whether the verdict be for rape or for a lesser offense included in that crime as charged. It will serve no good purpose and it is unnecessary to go into the minute details of when, where, and what took place at the time the State contends the defendant had carnal knowledge of his stepdaughter, a girl less than 13 years of age. The defendant contends that even if the declaration which the deputy sheriff testified the defendant made to him on the occasion when he was moving the defendant from one jail to another, while he had him in custody under the charge in the indictment, was correct, it was ambiguous in that it referred to several occasions, and did not completely specify to which occasion the defendant referred; that is, the confession to the deputy sheriff did not completely specify that the defendant referred to the occasion and the transaction alleged in the indictment. It is sufficient to say that even if we concede that the confession was necessary in order to connect the defendant with the incident testified to by the girl and charged in the indictment, there was enough evidence to indicate that the confession had reference to the transaction under investigation, although the defendant failed to confess with complete specifications; and it was proper to leave it to the jury to determine whether the defendant, in making such declaration to the deputy sheriff, had reference to the criminal act [608]*608with the commission oJE which he was charged, although the declaration did not in terms state the time and place to which it referred. Lancaster v. State, 54 Ga. App. 243 (187 S. E. 617); Allred v. State, 126 Ga. 537 (55 S. E. 178). The testimony of the girl alleged to have been raped was not impossible or so inherently improbable as to be unworthy of belief as a matter of law, but her credibility on all questions was an issue to be determined by the jury in the light of her tender years and other circumstances. Berry v. State, 185 Ga. 334 (3) (195 S. E. 172). The evidence authorized the verdict. The judgment refusing a new trial was not error for any reason urged.

Judgment affirmed.

Broyles, O. J., and Guerry, J., concur.

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MacIntyre, J.

Allen Sewell was charged with rape of his stepdaughter, a girl alleged to be less than 13 years of age. He was convicted of a misdemeanor. His motion for new trial was overruled, and he excepted. The stepdaughter testified that the carnal knowledge was forcible and against her will. A deputy sheriff, who had the defendant in custody under the charge in question, and who was transferring him from the jail in Gainesville, Georgia, to the jail in the county where the alleged crime was committed, testified that the defendant told him that he had intercourse with his stepdaughter two or three times, “but she was willing.” The girl’s grandmother testified as to her physical condition on the same night after the alleged rape, and the mother of the girl took her to the doctor the next day. Another woman testified that she was present at the examination by the doctor, and testified as to the girl’s physical condition at that time. The defendant, in effect, denied all criminal acts alleged in the indict[607]*607ment. The evidence for the State tended to show that the girl was between 12 and 13 years of age; and of course, if this was true, she was incapable of consenting. Code, § 26-1303. The defendant in his statement to the jury said that she was 17 years of age. He contended, first that the girl’s testimony was impossible; second, that the girl’s testimony was not sufficiently corroborated; third, that the evidence did not authorize the verdict.

Conceding that the testimony of the female in a case of rape, where she is capable of consenting, must be corroborated, “the only corroboration necessary in a case where the woman is an imbecile [or a child under 14 years of age] incapable of consenting is proof of facts or circumstances tending to sustain the testimony of the woman as to acts of sexual intercourse with the defendant” (Smith v. State, 161 Ga. 421, 131 S. E. 163); and if in the instant case there was sufficient evidence from which the jury were authorized to find that the confession to the deputy sheriff, referred to the transaction charged in the indictment, it was sufficient corroboration, whether the verdict be for rape or for a lesser offense included in that crime as charged. It will serve no good purpose and it is unnecessary to go into the minute details of when, where, and what took place at the time the State contends the defendant had carnal knowledge of his stepdaughter, a girl less than 13 years of age. The defendant contends that even if the declaration which the deputy sheriff testified the defendant made to him on the occasion when he was moving the defendant from one jail to another, while he had him in custody under the charge in the indictment, was correct, it was ambiguous in that it referred to several occasions, and did not completely specify to which occasion the defendant referred; that is, the confession to the deputy sheriff did not completely specify that the defendant referred to the occasion and the transaction alleged in the indictment. It is sufficient to say that even if we concede that the confession was necessary in order to connect the defendant with the incident testified to by the girl and charged in the indictment, there was enough evidence to indicate that the confession had reference to the transaction under investigation, although the defendant failed to confess with complete specifications; and it was proper to leave it to the jury to determine whether the defendant, in making such declaration to the deputy sheriff, had reference to the criminal act [608]*608with the commission oJE which he was charged, although the declaration did not in terms state the time and place to which it referred. Lancaster v. State, 54 Ga. App. 243 (187 S. E. 617); Allred v. State, 126 Ga. 537 (55 S. E. 178). The testimony of the girl alleged to have been raped was not impossible or so inherently improbable as to be unworthy of belief as a matter of law, but her credibility on all questions was an issue to be determined by the jury in the light of her tender years and other circumstances. Berry v. State, 185 Ga. 334 (3) (195 S. E. 172). The evidence authorized the verdict. The judgment refusing a new trial was not error for any reason urged.

Judgment affirmed.

Broyles, O. J., and Guerry, J., concur.

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4 S.E.2d 475, 60 Ga. App. 606, 1939 Ga. App. LEXIS 102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sewell-v-state-gactapp-1939.

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