It is the view of the majority of the court that the testimony of the prosecutrix in the present cases was sufficient to show both actual force and constructive force, and that the court did not err in charging on constructive force.
Howard Watson, Edward Duvall, and Charles Cochran were jointly tried and found guilty of rape, and were given sentences of not less than two and one-half years and not more than ten years. The defendants each filed a motion for new trial, which was later amended. The exception is to the judgment denying the motion for new trial.
The one amended ground of the motion for new trial attacks the charge of the court with reference to constructive force, on the grounds that there was no evidence of threats of serious bodily harm to the prosecutrix; the charge was misleading and confusing; it was tantamount to the expression of an opinion by the court that there were actual threats of serious physical violence to the prosecutrix; the charge as given was tantamount to the direction of a verdict against the defendants, and amounted to an expression of an opinion that the intercourse (which was admitted by the defendants, but with the contention that it was with the consent of the prosecutrix) resulted from threats of serious bodily harm.
The testimony of the prosecutrix on direct examination (omitting the identification of the prosecutrix), and a portion of her testimony on cross-examination, were as follows:
"I live with my grandparents, . . . I am seventeen years old . . . I was seventeen years old on the 27th of last April. I have a sister younger than I am; she is fourteen . . . I know Charles Cochran, and Edward Duvall, and Howard Watson. On November 4th of this year I was at a place with those boys in this county. The occasion for my getting up with them was that my sister and I were going to the show, and my brother and another boy was to meet us, and they asked us to ride with them, or Chigger did. That was Chigger Cochran; he has a nickname of Chigger. We were just around the bend from our house when they asked us to ride with them, before we got to the bridge. That point was on the other side of the Jarrett Hotel over there. My sister was with me there at the time. Cochran and the other boy passed us going up the highway, and they turned around not far from us. They asked us then if we wanted to ride to town with them, and we refused at first, and they told us they would take us to town to the theater, and when they got to town they turned down towards the grille, and they said they would go down there and get some lighter fluid, and Edward Duvall got out there. I think it was Edward's car; he was driving. Edward got out and got some lighter fluid. I did not get out with him. My sister and I were in the car, sitting in the middle. The car had only one seat; it was a one-seated automobile; all four of us were riding on the one seat. We were at the Welcome Grille there just long enough for him to go in and come out. When he came out they had talked that they were going to take us back to the theater, but they kept going out up the highway, and they turned off of a road up there and we told them to take us back to town. And when we got up there they turned off that road, and Charles said we have got something at the cabin. And going up there they was just as nice as could be. When he got up there he unlocked the door. That cabin was out on this Chatsworth Highway. They turned off on a kind of crooked road there. That cabin was not too far off of that highway; we were right down below the cabin when we stopped. I would say we were about as far as from here to that door there from the house. I went up to the door of the house there with the Cochran boy to hold a light for him, and the outer door was open and he went on the inside. He unlocked it and went on in the inside, and I went on the inside to hold the light, and when he got in there he pulled me down on the bed and was trying to take my skirt up, and I caught him and started fighting him, and he got mad, and he said if I didn't let him have some by himself that nobody else would have it, and I told him I wouldn't let him, and none of the rest of them. All he went to the door and called Jimmy Milton and Edward Duvall came up there. I was in the room there then with Edward Duvall and the Cochran boy, just the three of us. Edward came in there and he said are you having any trouble, and Chigger says, 'Yes, I am, she isn't willing,' and he says, 'She will get willing,' and he says, 'Probably we will need some more help,' and then I started crying, and Jimmy Milton came up there, and he asked me what was the matter with me, and I told him the same thing he told him, and then Jimmy told them to let him talk with me and for them to go outside, and they all went outside but Jimmy, and they stayed on the outside of the door. The door was shut, and just me and Jimmy Milton were in the room. And so he told me there that I had might as well let the boys have their way, they were going to be saying that anyway, and they wanted to have a good time while they were at it. I asked Jimmy then to carry me home, and he said he couldn't do it, because there was three boys there besides him. And while Jimmy and I were talking there, Chigger Cochran came back in. And when they came in then Jimmy Milton left, he went out. Howard came in and Edward and them were saying he would be first, and Chigger said he was going to, and they were standing there talking, and Edward and Chigger and Howard said they would match, and Cochran then said he wasn't going to match, that he had brought me up there and he was
going to be first. And then I walked over to the door and they stood against the door and held it. That was Chigger and Edward. Howard Watson was there, and he laid down on the bed, and he said I never have raped a girl but it looks like I am going to have to. And they stood around there talking, and I begged them to bring me home, and they said 'No,' I would go home and tell what they had done, and I told them I wouldn't tell it if they would take me home, and I told them I would tell it if they bothered me. And so then Chigger told me to take my clothes off, and I told him I wouldn't, that I wasn't going to do it, and so he took my coat off and laid it on the back of a chair and pushed me down on the bed and I started to fighting him, and Edward held me and Chigger pulled my pants off. That was Edward Duvall. And Howard I reckon was holding the door, and Chigger told him to leave the room, and they locked the door and I don't know who was on the outside from then on, except who came in the room with me. As to what became of Duvall and Watson--I think they were holding the door from the outside, but I don't know just where they were. And then I fought Cochran as long as I could, and when I couldn't fight any more I called my sister, and I don't reckon she heard me, and he went ahead and done what he was going to do, and I was fighting him. My sister was in the car when I left her. I was hollering for my sister, and I don't know whether she heard me or not, but she said she didn't. I said I fought Cochran, and I fought them all. Cochran did have intercourse with me. And then when he finished and completed that intercourse, he held me then and he called Edward Duvall, and he had an intercourse. When Edward came in Cochran went out, but he held me until Edward got his hold and then he went out. He held me down on the bed so I couldn't get away from him. He held me by my shoulders, sort of set down on me. Then Duvall came in and then Cochran left the room, but I don't know where he went. Duvall held me then until I quit fighting him, I fought him as long as I could, and I tried to scratch him and I couldn't. And he had an intercourse with me. To keep him from having that intercourse I kicked him and was trying to fight him, and I told him that he was going to be sorry, and he just said that was the one, that there wasn't any girl in town that he hadn't done the same thing with. And when he finished Jimmy Milton came in. I don't know who called him, he just came in. Duvall was with me when Jimmy came in; he had just got through having an intercourse, and he said 'Next', and Jimmy came in and he held me there. Duvall went out. Jimmy set down on the bed beside me, and he told me he wasn't going to bother me; and before Edward left Jimmy zippered his pants up. He had done like he was going to have an intercourse with me before Duvall left. Jimmy sat down on the side of the bed, and I told him to let me up. I was talking there and crying and telling him that I was going home, and he told me I might get hurt if I got up. I was crying all the time. He stayed there with me, it didn't seem long, not near as long as the rest of them, and he did not have an intercourse with me. Then when he left he called Howard Watson in. Jimmy called Howard; he just said 'Next' and got up. As to whether or not he called Howard's name he just said 'Next'. Howard was the last one. When Howard came in Jimmy went out. He held me there and I got sick, I guess, by what they had done, and I passed out, and when I came to he was still there with me, and when he got through he pulled me off of the bed and told me to put my clothes on. Howard Watson was holding me when I passed out, and I was trying to get up, and I was fighting him. I passed out twice while he was there. While Howard Watson was having an intercourse with me I don't remember telling him anything only to let me get up, I was sick, and I told him he would be sorry, and he said I would be sorry, and I told him that I wasn't that kind of a girl, and I asked him why he was doing me that way and he said because he wanted to. After Howard had the intercourse with me then some of the other boys came in there. Charles pulled me up off of the bed. I don't know where Duvall was, I didn't see him then. As to whether Watson and Jimmy left then--they wasn't down in the car when I got there. They were not riding in the same car with us. Charles by himself got me up off of the bed. I put my coat on. He handed my panties to me and I put them on. Charles walked with me from the house down to the car. Duvall was in the car. And when I got to the car my sister was in the car.
We rode back in his car. The lights went out and Charles had to walk in front of the car and told Edward where we were going, and when we got on the highway, up on the road, they told Howard to drive behind us until we got to the lights, and Howard Watson drove behind us until we got to the station, and they told us to get out of that car and they would drive us home in his car, and Howard brought us home in his car. We got out and got into Howard Watson's car and Howard Watson drove us home. Charles and Edward were already in the other car. Jimmy Milton went on home with us in the car, to our home, and also Cochran. And on the way I started to get our of the car, and I told my sister, and she didn't say anything until we got home, and there I told my grandmother and grandfather . . . and I also told my brother what I told them; when I got out of the car he was coming across the street, he had come back home, and so I went upstairs and when he came up he asked me what was wrong and I told him. I told him as quick as I could what I had told my grandfather and grandmother. This place there where this incident took place that I have told the jury about I think was in Gilmer County, but I don't know that. That is my information, but I had never been to the place before. After I had told my grandfather and grandmother about this I did not then go immediately to the hospital, but they got the sheriff to come over there and they got some warrants, I think, and then I went to see the doctor. As to what, if anything, either of these boys said with reference to what they would do if I told it--they told me they would get me again, when I started to get out of the car, if I told it; Charles Cochran said that, when we started to get out of the car at home; and Duvall and Watson didn't say anything there, and Jimmy told me he wanted to be friends; that is all he said. When I left home I did not know that we were going to meet those boys. I did not know that they planned to take us to this cabin.
"[On cross-examination.] I hollered for my sister. That was before they ever got me down on the bed. I mean Howard and Edward. As to whether or not I hollered for my sister when Chigger got me on the bed or Jimmy got me on the bed, or Watson--yes, sir, and they told me if I kept on I was going to get hurt. I first called to my sister when I first tried to get out of the door.