The testimony of the alleged injured female, if credible, was sufficient to establish every material element of the crime of rape, with which the defendant was charged. By the Code, § 38-1805, the jury is made the sole judge of the credibility of this witness; and this court is a court for the correction of errors of law only (§ 2-3005). The evidence supported the verdict; and it was not error to overrule the motion for new trial, which was based upon the general grounds questioning the sufficiency of the evidence.
No. 13196. APRIL 9, 1940. Roy Merritt was tried for the offense of rape, alleged to have been committed on the person of Eunice Maddox. The jury returned a verdict of guilty, without recommendation, and the defendant *Page 82 was given a death sentence. A motion for new trial was made on the general grounds that the verdict was contrary to law and the evidence, without evidence to support it, etc. No special grounds were added by amendment. The judge refused a new trial. The bill of exceptions assigns error on that judgment.
The evidence submitted at the trial, so far as necessary to be stated, is in substance as follows: Eunice Maddox, the alleged injured female, testified: She lives with her brother in Griffin, Spalding County, Georgia. On September 2, 1939, Wayne Askew, a brother-in-law of Roy Merritt, came to her home in the afternoon and asked her to go with him. She asked who was with him, and he answered, "Roy," whereupon she stated that she could not go. He then asked her to go out to the car, saying that Roy was going home. When she went to the car Roy and Bud Eubanks were there. Askew said Roy was going home, and the defendant got out of the car and stated that he was going to the circus, and told Askew to take Eubanks home. Witness then got in the car with Askew, and the defendant got back in the car. She tried to get out of the car, but they kept going and wouldn't let her out. They stopped at Tom Foster's place and got some whisky, and she was fixing to get out of the car there, but the defendant jumped in the front seat and told her she could not get out, for it would cause trouble for all of them. They stopped at another filling-station to get some fruit juice to drink after the whisky. They went from there to Zebulon, took the Concord road, and, after crossing a bridge, turned off on a little road and parked. That was about 8:30 at night. The defendant told her to get in the back seat, and she refused. She got out of the car and ran up the road, but the defendant caught her and brought her back. She caught and held to the steering-wheel, but he pulled her head back in his lap. She told him he was choking her, and he released her; and she hit him on the arm with a nail-file and tore his shirt. He slapped her in the face and she "saw stars." When she hit him back, he struck her with his fist and knocked her down. While this was happening, Askew and Eubanks were standing back of the car watching. The defendant had sexual intercourse with her. She kicked him, and he said, "You kick me and I'll kill you." She hit him, and he said, "I will kill you, God damn you." This was in Pike County, Georgia. There was a house on top of the hill, about 300 yards *Page 83 from where the car stopped. She was in the back seat of the car when the defendant had connection with her. The defendant would not let her call and ask the other boys to help her, saying that he would kill her if she did. He did not put his hand over her mouth, but he told her to keep quiet, and she did not call because she was afraid of him. Finally she got out of the car after the defendant had had intercourse with her, and started up the road, but the defendant carried her back to the car; and every time she would run off he would catch her and bring her back. When the defendant got through with her, Askew asked them to leave, but Eubanks said he was not going until he had tried her out. She started to run, and Eubanks grabbed and put her over the fence roughly, and when she refused to lie down as he requested he laid her down on the ground and unfastened his clothes. She told him that if she lived to get home she would tell it. She asked the other boys to help, but they refused. Eubanks tried to have intercourse with her, but failed. When he got through, she got back over the fence and told them to take her home. The defendant made her get in the back seat, and got in the back seat with her. They returned to Griffin, Spalding County, at about 10:30, and took Eubanks and Askew home. They came straight up Hill Street. A drug-store was open, and she saw a policeman on the corner, but she did not cry out, because "Roy dared me to holler. He told me that I had better not holler." Eubanks told her to lie down in the car so his wife couldn't see her, but she did not do it. When they had put Eubanks and Askew out of the car, leaving only witness and the defendant in the car, the defendant drove out Hill Street to Dobbins' old mill, about where the houses stop. Roy Merritt had connection with her near Dobbins' mill. She got out of the car and got away from him, but he ran and caught her and carried her back to the car. The defendant had intercourse with her in the car five or six times. She is twenty-five years old, and the defendant is forty-two years old. She had known the defendant five or six years, and about two years before had gone to ride with the defendant, another girl, and Shorty Hopkins; but nothing improper was done at that time. After Roy Merritt got through with her, he carried her home and put her out in front of the house about twelve o'clock. Her body, arms, legs, and throat were bruised the next morning, and her throat and arms had finger-prints on *Page 84 them. Her private parts were sore the next morning. There were no finger-prints on her legs, but the defendant bit her on her leg. The defendant told her he would ruin her whole family, and threatened her life if she told what had happened, and she did not tell it until the next morning, when she told her sister-in-law and the chief of police, and went to see Dr. Griffin. When she left home that night she had on only stepins for underclothes, and the defendant pulled them off when he had intercourse with her. He pulled his pants off and put them back on, and then pulled them off and put them back on again on North Hill Street in Griffin, saying that he pulled them off because he would mess them up. She never put her stepins back on, because she never had a chance. The defendant had sexual intercourse with her both in Pike County and in Spalding County, against her will, by force, and without consent.
Mrs. Cecil Maddox testified, that her husband was a brother of Eunice Maddox, who lived with them; that on the morning of September 3, Eunice Maddox was bruised all over her neck, arms and legs, and stayed in bed several days before she could work; that she did not know what time Eunice came in the night before, and knew nothing of what had happened until the next morning; and that Eunice looked depressed, and, upon being asked what was the matter, related her experience of the night before, substantially as testified to on the trial by her, except that she did not mention about her experience with Eubanks for several days. Cecil Maddox testified to the bruises and signs on the body of Eunice Maddox. J. S. Harper, chief of police of Griffin, testified that Eunice Maddox's throat was bruised, that finger-prints were on her neck, that her arms and legs were bruised also, and that she was bruised all over very badly. Wayne Askew testified substantially as did Eunice Maddox, except that he said she made no complaint in his hearing during the entire time he was with her; that when the car stopped in Pike County, the defendant told him to get out, and Eubanks, using profanity, told him to get away from there, and he went a distance of 75 or 100 yards to the main road; that he returned to the car after about thirty minutes, and saw the defendant on top of Eunice Maddox in the back seat; that when they got through she asked him to help her find her key, and he turned on the light of the car and found the key; that on the way down there he told *Page 85 the defendant he thought it was agreed that he should have the car and the girl, and that defendant and Eubanks were to stay in Griffin; whereupon the defendant stated that he had been out with the girl before, and that he and Eubanks intended to take her out then; and that when they approached the home of Eubanks, Eubanks told Eunice Maddox to lie down in the back of the car so his wife would not see her, and she did so.
The defendant's statement was substantially as follows: On September 2, he came down from his house about dark and carried Troy Turner to the home of Eubanks. When he got there Eubanks got in the car and stated that he had had some trouble with his wife and wished to hasten away before the officers got there. Eubanks put five gallons of gasoline in defendant's car, and they went out to the carnival and stayed a while. Eubanks asked him if he knew where they could find anything, and defendant said, "I don't know. Eunice Maddox lives right there. I have been out with her once before, and she promised me that when her sweetheart did not have a date that she would give me a date. We can go over there." His brother-in-law, Wayne Askew, had seen her at the mill, but did not know her. She came out to the car with Askew, and defendant asked her to go to ride. She said she could not go, that they were all married. Askew asked, "What do you want to do?" "We will get out if you want to ride around," the defendant replied. Eunice Maddox then went in the house, got her pocketbook, came back and got in the car. They made the trip into Pike County, where both defendant and Eubanks had sexual intercourse with Eunice Maddox with her consent, and without threat or force. When the defendant got through and was fastening his clothes, Eubanks called her and she got out of the car and walked down the road. She and Eubanks got over the fence and had sexual intercourse. When they returned to Griffin, they put Eubanks and Askew out of the car, and defendant and Eunice Maddox rode out by Northside station and came back by Dobbins' mill. They sat down and talked there. He did not touch her while they were there. They laughed and talked for a while, and then he carried her home. "Rape is the carnal knowledge of a female, forcibly and against her will." Code, § 26-1301. The assignment of error with which we are to deal raises the sole question of the sufficiency of the evidence to support the verdict. It can hardly be questioned that the testimony of the alleged victim makes a case of rape. She gives positive testimony that the defendant had sexual intercourse with her in Spalding County, as alleged in the indictment, forcibly, against her will, and without her consent. The burden of the argument of counsel for the defendant in this court is that her testimony is discredited and ought not to be believed. It is contended that this court should pass on the credibility of the testimony and grant a new trial upon the sole ground that the testimony sustaining the conviction is unworthy of belief. It is insisted that Simmons v. State, 99 Ga. 699 (27 S.E. 755), Cheney v. State,109 Ga. 503 (35 S.E. 153), Davis v. State, 152 Ga. 320 (110 S.E. 18), Peters v. State, 177 Ga. 772 (171 S.E. 266), and Slaughter v. State, 181 Ga. 32 (181 S.E. 292), support the contention that this court should in rape cases not only determine that there was evidence to support the verdict, but should also determine whether or not that evidence is worthy of belief. An examination of each of the decisions relied upon discloses a state of facts differing in material respects from the facts in this case; and in view of the Code, § 38-1805, which provides that the jury shall determine the credibility of witnesses under proper instructions from the court, it can not be said that as a matter of law the verdict is not supported by the evidence. Looking as we must solely to the record, it appears to us that the jury could have found the testimony of the prosecutrix was discredited in the following particulars: (a) She at no time made an outcry. (b) There was no weapon or serious threat of injury to justify her fears. (c) She failed to inform her brother when she returned home, on the excuse that the defendant had threatened to ruin her family and kill her, and yet without hesitancy she told her sister when asked what was the matter with her. (d) She made no attempt to give the alarm at the drug-store in her home town or to the policeman whom she saw standing near-by. (e) She made no protest to being left with defendant in the car, or to his carrying her to ride in Griffin. (f) No explanation is given why she did not and could not flee while the defendant, under her testimony, removed his *Page 87 trousers twice. But these circumstances, standing alone, did not necessarily destroy her positive testimony in the minds of the jury. While this court, in Patton v. State, 117 Ga. 230 (43 S.E. 533), said, "Courts and juries are not bound to believe testimony as to facts incredible, impossible, inherently improbable. Great physical laws of the universe are witnesses in each case, which can not be impeached by man, even though speaking under the sanction of an oath," we do not understand such language to imply that this court should weigh evidence against evidence and invade the province of a jury by deciding what evidence will be accepted and what will be rejected. In those cases where testimony is given under oath which is irreconcilable with "the great physical laws of the universe," such a conflict completely destroys the testimony, and in that event this court can properly say that there is no testimony. While it has repeatedly been said that the testimony of the prosecutrix in a rape case should be carefully scrutinized, we know of no rule of law which authorizes this court to pass upon the credibility of such witness. The functions of this court are defined by the constitution, and we shall adhere strictly to the functions thus defined. Article 6, section 2, paragraph 5 (Code, § 2-3005), in part, declares: "The Supreme Court shall have no original jurisdiction, but shall be a court alone for the trialand correction of errors of law." [Italics ours.] All issues of fact must be determined by the jury, and their verdict must have the approval of the trial judge. The Code, § 70-202, empowers the judge to set aside a verdict by the grant of a new trial, and such authority carries with it a duty to do so when in his judgment the evidence is insufficient to sustain the verdict. Thus, in the trial court, every phase and angle of the evidence comes under the scrutiny of twelve jurors, who under solemn oaths reach a verdict establishing what they find to be the facts, and the evidence is again reviewed on the motion for a new trial by the judge, who is vested by law with wide discretion and has a profound duty to exercise that discretion in approving or disapproving the finding of fact made by the jury. But when the trial judge has discharged this duty of his, the Supreme Court has no power under the constitution to pass judgment on issues of fact made by the evidence. It is apparent that when heavy penalties are imposed after conviction, if there are issues of fact and no errors of law the trial judge is the only officer who *Page 88 has the power to set aside the verdict on the ground that the evidence is insufficient, and thus save the defendant from suffering the penalty imposed. When such a verdict is supported by the evidence and is approved by the judge, this court is without lawful authority to disturb the same; and the defendant must pay the penalty, unless granted executive clemency. The evidence in this record, while appearing to this court as inconsistent in some respects, as above set out, yet supported the verdict, and its credibility was a matter solely for the trial judge and the jury.
Judgment affirmed. All the Justices concur, except Atkinson,P. J., who dissents.