Domingue v. State

Duckworth, Chief Justice.

The defendant was indicted, tried and convicted of the crime of rape and thereafter sentenced to five years imprisonment. The appeal is from the judgment and sentence with numerous specifications of error involving the alleged illegal allowance of testimony, the charge of the court, and a denial of a motion for mistrial. Held:

1. The evidence was sufficient to support the verdict, and none of the specifications of error involving the sufficiency of the evidence are meritorious. Suber v. State, 176 Ga. 525 (168 SE 585); Annunciatio v. State, 176 Ga. 787 (169 SE 3); Shivers v. State, 181 Ga. 557 (183 SE 489).

2. The alleged admission of the accused, made while he was in custody but before a warrant was issued, was not allowed in evidence; hence there was nothing for the judge to admonish the jury about in regard to the testimony of the officer, made outside the presence and hearing of the jury. The ground of the motion for mistrial was insufficient, and all of the specifications of error in regard to the testimony of this officer are without merit.

3. Since the defendant was sworn and testified as any other witness, error is alleged in an instruction to the jury on the various circumstances they might consider in determining if the testimony of the female had been corroborated together and along with the statement of the defendant, in that this charge was misleading, confusing, incomplete and does not give force and effect to the sworn testimony of the accused. The charge, as a whole, is sound and correctly charges the law involved, and in this instance it was not harmful to refer to the defendant’s “statement,” which corroborated some of the testimony of the female. It did not, as contended, put emphasis upon the difference in the grade of proof between an unsworn statement and the sworn testimony as claimed by the appellant, citing Pickler v. State, 220 Ga. 224 (183 SE2d 171) (Duckworth, C. J., dissenting).

Submitted July 12, 1966

Decided September 8, 1966.

G. Hughel Harrison, for appellant.

Reid Merritt, Solicitor General, Arthur K. Bolton, Attorney General, G. Ernest Tidwell, Executive Assistant Attorney General, Carter A. Setliff, Assistant Attorney General, for appellee.

4. There was no oral argument, and all of the enumerations of error argued in the brief of appellant’s counsel have been considered. All other enumerations of error are deemed abandoned.

Judgment affirmed.

All the Justices concur.