
    Ravenel v. The State.
    No. 2928.
    March 18, 1922.
    Indictment for rape. -Before Judge Hodges. Hart superior court. November 4, 1921.
    The defendant was indicted for rape alleged to have been committed by him on Fannie Nixon on September 15, 1921, in the county of Hart, this State. The evidence for the State was as follows:
    Fannie Nixon testified that she was a widow, fifty-one or fifty-two years of age. Doc Adams, Mr. Temples, her brother Charlie, and Mitch Adams were her closest neighbors. Her house fronts on the public road, not far from it. Doc Adams lived not very far from her house, in holloing distance. On or about September 15 (the trial occurring October 13, 1921), Thursday night three weeks ago, she was at home alone. She went to bed about dark, or a little after. Doesn’t recollect whether she had a light, but guesses she did. . She had a light. Will Ravenel and Rufus Adams are all that she heard of coming to her house that night. There might have been one or two more. Sometimes there are so many running up and down the road. She has been living in war since her husband died. Will Ravenel came to her house, and Rufus Adams claims they were together. She felt like it was about twelve o’clock in the night. She heard a calling and a knocking when they came to her house. It was just knocking at the door and kept knocking. Rufus Adams was knocking. She let him in. When he came in he said that he had a little whisky out there that he had gone off for and had for his boy. He said, “ Aunt Fannie, I thought you were sick, and I thought I would stop and give you some of it:” and she told him she did not care much about it, but he could pour her out some. She hacT gotten out of bed, opened the door, and lit a lamp. She did not go outside of the house. The whisky was brought inside of the house. About a half teacupful was poured out for her. She drank a little of it, and the balance next morning. Rufus said Will Ravenel was with him. She saw the bulk of Will Ravenel out there in the road. She had been knowing Will Ravenel all the year. He had been passing up and down the road all the year, and he took charge of the stables like they were his. Don’t know where he kept his mules, but his wagon and buggy stayed out there under her shelter. Rufus didn’t stay at her house very long after he got there. She told Rufus that this didn’t look nice at all, coming here at this time of the night; told him he oughtn’t to be coming here waking her up. When she waked up she heard them talking, and she said, “ If you are going to bring me any whisky, tell Will to go on, that I didn’t want him to be in my house and nobody here but me.” Rufus said he was going to leave her; said he was going home. She saw the bulk of the man out there in the road come into her house. He jerked hold of her arms and told her that he was going to kill her. That was after Rufus left. It didn’t seem like it was more than five or six minutes. After Rufus Adams left, Will Ravenel came to her house. He jumped into the door and grabbed her by the arm. The door was open. When he came into the house he said he was going to kill her. After he said that he jerked her on into the back room, throwed her down on the bed, choked and smothered her with quilts. When he first came into the house he took hold of her arms and shut the door after him. She was in the front room when he came into the house, and she was carried from there to the back room. At the time he grabbed hold of her he tried to make a wife out of her; that is what he tried to do, but he didn’t. (The stenographer here made this note: The witness had turned her head to one side, and he understood her to say in a low tone of voice, “but he didn’t.”) lie choked her until she couldn’t put her hands on her face, throat or breast anywhere for two or three days. He had murdered her, because she knows she will die. She had just as well be dead now. She had done suffered ten thousand deaths. She was trying to get away from him, and she screamed and holloed as loud as she could. She thought somebody would hear her and come to her. She told him to turn her loose, and it was not his place; that she was at home and was not boarding him at all, and he didn’t have any business there at all, for she didn’t give him any provocation to be there.
   Hines, J.

1. We can not say, as a matter of law, that the verdict was without evidence to support it.

2. It is urged that the court erred in charging the jury as follows: “ I charge you further, on the trial of rape, it is essential to show, either [by] direct or indirect evidence, that actual carnal knowledge or carnal sexual intercourse. However, slight penetration is deemed necessary.” It is not alleged in the motion for new trial in what respects this charge is erroneous. This instruction was substantially correct. Wesley v. State, 65 Ga. 731; Morris v. State, 54 Ga. 440.

3. No error is assigned in the ground of the motion for new trial alleging that the court did not caution the jury that they should disregard certain applause on the part of the spectators when a certain witness was testifying. Besides, this ground is too indefinite and .general to enable this court to ascertain therefrom what transpired on this occasion; and the recital of facts therein stated is not verified by the trial judge. For these reasons this ground can not be considered.

4. In the third ground of the amended motion it is alleged that “ the facts in the case required a full and complete charge, including the definition of expert testimony.” This ground is so general that no question is presented for decision by this court. Besides, there is no complaint of error therein.

5. The court did not err in permitting the victim of the alleged rape to testify against the defendant, on the ground that she was mentally incapable of so doing, there being evidence that she possessed sufficient strength of mind to render her competent to testify. Besides, in the ground of the motion for new trial raising this question, no error is alleged in any ruling of the court concerning this matter; and no error being alleged, there is nothing for this court to pass upon.

Judgment affirmed,.

All the -Justices concur, except Fish, O. J., absent because of sickness.

In regard to stating whether or not she said a while ago that he tried to make a wife out of her, she guesses so. He had hold of her arm and choked" and smothered her. Besides choking her he mashed her; besides mashing her, he acted like a dog, she reckoned. When he choked her and carried her into the back room he had sexual intercourse with her; that is what he tried to have. She had on the clothes that she had been wearing that day. Doesn’t recollect that she had pulled off her clothes to retire. She might have laid down with her clothes on. Sometimes she does. Thinks she laid down with her clothes on. When Alex came after her she pulled her clothes off, stripped and put on some clean.clothes. On this particular night she remembers, this party who pulled up -her clothes .and had sexual intercourse with her. There were bruises on her body. Her neck was clawed and scratched up clean down to here on her neck (indicating). . She spit up lumps of blood all the next day. After this person did this he broke and run. He broke through the dining-room and bedroom and went on home. The reason she knows that is, she saw the bulk of him. She tried to get to the door to see where he went. This happened on Thursday night. With reference to how many weeks, “wasn’t it last week ? ” She does not know what month it was in. With further reference to how many weeks it has been, she said, “ Wasn’t it last week when it was done ? Dr. Hailey and you [referring to the solicitor-general] come down there — you have better minds ” than she has. This happened in Hart county. The next day after this happened she never saw anybody but Mitch Adams hauling syrup cane, and saw an automobile. She was .lying down most of the time. Couldn’t hardly be up at all. In regard to whether she saw anybody passing the house the next day, she told the solicitor-general that all she knew; that was Mitch Adams hauling syrup cane. Mitch came into the big road, but she didn’t speak to him, and why she didn’t was she was bad off. Little Mitch Adams was the first person she told about this transaction. She told him she wanted him to go to Alice and let them know it at once, and she wanted to have some one come down and swear out a warrant and put him in jail. She didn’t want him to come back to finish. That was on the next day. She doesn’t recollect what time of day it was, but it was about 11 o’clock. The reason why she didn’t tell somebody about it sooner, she went out to get Bufus Adams, and told him to come up, but he didn’t come. When he did come on Saturday, she thinks it was, he said, “Aunt Fannie, I wouldn’t tell this — I don’t believe it looks so bad.” Explaining why she did not make an outcry sooner about this, she said “Mr. Skelton, would you feel like going and striking off up here, when you couldn’t touch your throat or face or nothing with your hands and coughing up blood?” She thinks she would have been dead in two or three days. The reason she didn’t tell somebody about it, there was nobody to tell. She told little Mitch Adams, and asked him to go to Alice and let them know about it. She wanted him to come down and swear out a warrant, and have him' where he wouldn’t bother' anybody else. Mr. Temples came to her house — she doesn’t remember when — but he came up there and came too late and got Mr. Kidd and got Sheriff Brown and Dr. Hailey and sent them down there. Somebody came in her house and she asked who was that, and he said “ Will Bavenel.”

Cross-examination: When- Bufe came in with Will Bavenel I saw him with Bufe. He was out in the road. Q. “ Do you think you wouldn’t know anybody that come into your house ? ” A. “I told you when Will come back the second time the light was burning. That was at the time Will come in the door. I told you a while ago it was four or five minutes after Bufe left until Will come back the second time.”

Rufus Aclams, for the State, testified: I live something like two hundred yards from Mrs. Fannie Nixon’s. Mr. Temples lives in about four hundred yards. Will Ravenel lives about a quarter of a mile from Mrs. Nixon’s. I remember the time of this alleged offense. Was with Will before night, and was with him when we come by the home of Mrs. Nixon. It was about twelve o’clock, I guess. Stopped there with the intention of giving her a drink of whisky, if she wanted it. There was a light in the house. Went up there and knocked on the door, and she came to the door. She asked me to come in. Told her I did not have time. She asked who was with me. I said, "Will.” I said, "Will has a drink of whisky and wants to give you a drink.” I said, "If you want a drink I will give you a drink.” She said, “ All right.” She got a cup. I carried it to him, and Will poured it half full. When he poured out the liquor he -said, " I have got to go home, and am going through the field.” Will was about twenty-five yards from the house, on the back side. Will left Mrs. Nixon’s first. It was about four or five minutes before I left. lie went towards his home. Don’t know what become of him from that time on. Didn’t see him any more that night. I went home. Mrs. 'Nixon was standing in the door, and I handed her the whisky in the cup. She set it down in the hall. Told her I wanted to get a match. She went and got a match. I lighted a cigarette and went home. My house is in plain view of her house. It is about two hundred yards, I guess. When I got home I went to bed. Didn’t see Mrs. Nixon until the next morning. She came to the top of the hill and holloed for some of us to go up there. Nobody went. She was about twenty-five yards from the house. Didn’t go to her house until Saturday morning — this was on Friday evening. She made complaint of something happening to her. She said that he came in and grabbed her. She made complaint of having been assaulted or raped. On Saturday when I saw her, her neck was scratched up. There seemed to be cut places on her neck and on each side of her throat, and it looked like it had been done with finger-nails. Didn’t observe any other marks of violence of a more aggravated nature, but saw those on her throat.

Cross-examination:. Saw Will on Friday. He was at his home. Went to see if I could get him to help pull cane-fodder. Saw him on Thursday evening and Thursday night. He, his bojq and I went to Mr. William McCurley’s. Don’t think we brought any whisky. I taken a drink that night after we got hack home. In coming back from the fish-fry we passed by our house before we got to Mrs. Nixon’s. The reason I went up the road with Will, he said that he wanted to see Charley Stowers, and he insisted on me going up the road with him. I didn’t go up there. Will went on towards Charley’s. He went up here with me and passed by Mrs. Nixon’s house. Stopped at Booze’s house. Will was gone down the road ten or fifteen minutes. I sat on the side of the road. That was about four or five- hundred yards from Mrs. Nixon’s house. There was a light down there at her house. Will didn’t see the light when we were at Booze Temples’. Saw the light at her house while passing only. Will left me at Booze’s, and I sat down on the bank. Going up the road I took a pretty good swallow of whisky, something like half a teacupful. I suppose it was homemade. Will had it and give it to me. It was in a gallon-jug. Austin was not along. He’ went on home when he came back from the fish-fry. Will took a drink. When we got back to the house my father walked in and went to bed. I suppose it was about half past eleven or twelve o’clock. Austin got out in the yard, and Will told him to go on home, and said, “ You are pretty drunk, make it if you can.” Will suggested that I go up to Charley Stowers’ with him. I wanted to get some tobacco. Mr. Temples run a store before you get to Charlie’s. After I got up there it was late, and I wouldn’t get him up to get me some tobacco. Stopped there at Booze’s and went on. When we got back to Mrs. Nixon’s house I saw a light burning. The door wasn’t open. Aunt Fannie was standing in the door when I left. Stayed there something like five minutes after Will left. Didn’t see Mrs. Nixon taking any whisky while I was there, but handed it to her. Will said that he wanted to give her a drink. I said, “AH right, don’t go up in the yard.” There was about a gallon in the jug. I said, “ If she wants any whisky I will bring it up there, and I will bring a glass. I don’t want her to see this whisky. Will was standing there in the door. The moon was shining. I went to the porch, asked her if she wanted a drink, and she said yes, and she got a glass, and gave her a half-teacupful. When I left Mrs. Nixon to go to 'iny house, I went to the back door to a little room on the far side, which was away from Mrs. Nixon’s. Saw Mrs. Nixon the next morning at a distance, but was not close enough to talk to her. She holloed for some one of us to go there, but nobody went. The reason why was we were fixing to go to the field, and I was in a hurry. She didn’t hollo like she needed help, but she wanted some of us to come there. Didn’t tell her not to say anything about Will.

Mitch Adams Jr., for the State, testified: I am a son of L. B. Adams. I live about two hundred yards, I suppose, from Mrs. Fannie Nixon’s. Her home is in view of my home. I remember the time of this alleged assault, which happened in the month of September,' about the 15th, on Thursday night, I think. Saw Mrs. Nixon on Saturday following, about twelve o’clock at her home. I went to Booze Temples’ store, and passed by, and she holloed to me and said she had something to tell me. She said somebody had come there and had intercourse with her. She said she had been raped. She wanted me to see about her, and she said that he treated her like she was his wife. I went to the store and told them not to say anything until I went to Alex and told him. Told Booze about it first, and if he saw Alex to tell him. Bufus Whitney, his brother in law, came down the road and she told him. I went to town and told Mr. Kidd. Mr. Kidd went and got him Saturday evening. That was the first night I had seen Mrs. Nixon during that week. Mrs. Nixon is about fifty years old, and is a weak woman. She had the fever one time and lost her health'.

Cross-examination: This thing happened on Thursday. Don’t remember whether I passed Mrs. Nixon’s house that day. Saw Will Friday. Saw him over there at his house, when I went over there early in the morning. Went to Will’s early Friday morning about a half hour by sun. Will was just, getting up while I was there. Had a drink that morning out of a gallon-jug. Will gave me the jug and all that was in it. The first conversation I had with Mrs. Nixon was on Saturday about twelve o’clock. She said I was the first one she had told it to. Mrs. Nixon had a severe spell of fever about ten years ago. She is not as bright as the brightest, but her mind is such that she knows people, and she talks with a reasonable degree of intelligence in ordinary conversation. She is able to take care of herself.

Monroe Kidd, for the State, testified: I know Will Bavenel. He weighs about 175 pounds, I should judge, and I reckon he is a pretty stout man. I was brought information to the effect that Mrs. Nixon had been assaulted. An arrest was made. After the arrest I went to the home of Mrs. Nixon. Mrs. Nixon was on the front porch lying on a pallet and I observed abrasions on her neck. The collar of the dress was torn. The left side of the neck was bruised and considerably swollen. The skin was broken about the collar. In my opinion these wounds and abrasions were made with the hands and finger-nails. The breaks on the skin indicated that she had been choked. She was very weak and could scarcely talk, but she was rational. She knew me, but did not know Mr. Britt Brown. Her conversation indicated that she was rational. Her mind was normal. She was excited, but after a minute or such a matter she'beeame quiet, and related the circumstances to Mr. Brown, myself, and Mr. Temples. I have known her for something like thirty-two years. For the past ten years she has been physically weak, and her physical condition is not such as to enable her to have much powers of resistance.

Cross-examination: In stating that she was rational I didn’t mean that she was in possession of all her senses. I meant that her mental condition was as good as it has been in the past ten years. Her mental condition has not been the best for the last ten years. It was caused -from fever. The throat around the collar of the dress was scratched on both sides, as if it had been clawed with finger-nails. This part of the neck was swollen and bruised, as if it had been squeezed. That was in front. A man with a big hand could get nearly around her throat. The swollen place was on the side of her neck. Didn’t see any blue place on the goozle, but it was red. Don’t know positively that she was scratched with finger-nails. It is possible that she could have scratched herself, but she could not have bruised this and have caused this side of her neck to have been swollen. The only bruises I saw were on the throat and neck. Haven’t got anything against Will. I want to see him have a fair trial, justice. I think he is the meanest nigger I ever saw. Mrs. Nixon.is in a weak condition, which I attribute to her sickness. She hasn’t the best mental condition. Have seen her when she was irrational. Don’t remember the exact time when it was, but Dr. Hailey and I went down there once to treat her husband John, and at that time she was not norma] or rational. She just seemed nervous at that time and talked about everything. That has been ten or fifteen years.

Dr. W. I. Iiailey, for the State, testified: Am a practicing physician at Hartwell. Have been engaged in the practice about twenty-nine years. I know Mrs. Fannie Nixon, and have known her about that long. I practiced for her and her family, and with her. It has been since her spell of sickness. Several years ago she had a spell of tj^phoid fever. Since then I have visited her as a physician a number of times. Have observed her on the streets, and at other times when I visited her in a professional way. She has been pl^sically weak most of the time. Her mental condition has been fairly good; it has not been good, but fairly good. From my knowledge of her in the past ten years, in my opinion Mrs. Nixon is a woman who possesses such a degree of mentality as to enable her to distinguish right and wrong. In her physical condition she is not strong enough to engage in a continuous resistance against force. She is a woman of such physical weakness as to be easily overcome by force. I remember the day of this alleged assault. Saw her on the 24th of September, and it was alleged to have been on Thursday night before. Was there on Saturday evening. I made a physical examination of .Mrs. Nixon, and forbid marks of violence or abrasions. She had been choked, and finger-nails had cut into the skin on one side. From the character of the abrasions I could determine that they had been made by finger-nails. The left side of her neck was swollen. She was scratched badly where the choking was. The outer skin was scratched off and showed signs of blood where the finger-nails went into the outer skin. At the time I saw it it was not bleeding. It was a draw cut with finger-nails into the middle skin. The abrasions of the skin were of sufficient depth to cause a scab to form, and I observed the scab one week after I made the first examination. I found marks of violence on her legs. On her left and right legs I found blue places. The blue places were done with a sharp instrument, with pressure of some kind. Found some red places below the knee. There were two or three on each side of the leg.' She was complaining very much with her left foot. There were signs of soreness around the chest. She could hardly stand for me to move her shoulder from one side to the other to examine whether she had a broken bone. She could not stand for me to examine her. That was from soreness. She said she was spitting blood, but I did not see any at that time. Made an examination of her private parts. Found the vagina and the vulva congested, swollen, and I found inside of the vulva matter like seminal fluid or vaginal mucous. By congestion I mean a swollen condition, which is an indication of sexual intercourse; and there were reasons to indicate that sexual intercourse or violation of the woman had occurred. The congested condition of the vagina and vulva was brought about by penetration of some kind, which I think was done with the male organ.

Cross-examination: I went down there at the solicitation of Alex Temples, her son in law. He told me she had been raped. Didn’t find any bruises on the throat, but cuts with the finger-nails. I think I can tell finger-nail cuts from a scratch by the shape and appearance. There were five on one side and one on the other. The thumb-nail was on one side, and five on the other. The neck was scratched. In making an examination of the vagina I found matter that looked like semen — vaginal mucous. I know how semen looks. I don’t know that mucous out of the nose looks the same way. It has a different appearance. I don’t know what it was, but it looked like semen more than anything else. How I know it was a mucous discharge, it looked like it. I did not say it was all mucous; I said semen. Didn’t carry a microscope. In a great many persons after they are.passed forty years an emission might take place without spermatozoa. An examination of’ a normal man thirty or forty years of age will disclose spermatozoa, nine times out of ten. It is owing to the number of times sexual intercourse has been had, and the short length of time. If the alleged offense took place on the fifteenth, and I went there on the 24-th, I would have gone nine days later. I went there the second day. I was there on Saturday after it was alleged to have been done on Thursday. The 24th is the time I went there.

If you make an examination of semen it will disclose a germ. A discharge of a woman is a germ which is called an ovum. I don’t think I-would have discovered spermatozoa, if there had been sexual intercourse, nine times out of ten, if I had made an examination. If intercourse had taken place between Mrs. Nixon and this man here, and he had gonorrhea, it might or might not have shown up in Mrs. Nixon by this time. It is not true that in a good many cases a person is almost certain to catch gonorrhea, Gonorrhea .is catchable, but no man can say what percentage of gonorrhea is catchable. Mrs. Nixon is not mentally strong and she is not physically strong. In 1919 I was on the jury that committed her to the asylum. She was not in a mental or physical normal condition at that time. The only thing we had in view at that time was to have her cared for by some special man, and in company with Dr. Meredith she was adjudged a fit subject for the lunatic asylum on the 28th day of November, 1919. Her mental . condition is better and has been better since that time. There is no question in my own mind, from my experience and my examination of her, but that she has had sexual intercourse. I am positive about that. I believe she has been raped. I am not positive that this defendant did it.

William McCurley, for the defendant, testified: Was at home, I recall, part of the time on Thursday night about the time of the alleged rape. On Thursday night I carried Will and Austin to a fish-fry, and Doe Adams and Bufus Adams went with me. I got home about ten or eleven o’clock. In regard to where Will went, they got out and went home. They left my house. They went in the direction of home. Doc and Rufus were with him and Austin.

Cross-examination : In going home he would go by Doc Adams’.

Willie Tate, for the defendant, testified: I know this negro ov.er there. Saw him in Elberton three weeks ago, I suppose. I was in jail. I saw his penis. It looked like there was some kind of disease, clap I suppose, wrong with it.

Cross-examination: I am not a doctor. It looked like it was running, and judging from mine (I have had the same thing), it looked like to me it was in the same shape mine was in. He had a bottle like that (indicating), but smaller than that, but the same kind of medicine, and I saw him using it. It cured me.

B. B. Brown, for. the defendant, testified: I went to the jail in Elberton with this negro on the 24-th of September. Had a conversation with Bufus Adams down here in front of the store. It was on Saturday evening; and he said that he, his father, Will, and several others went down below Negro Sardis to a fish-foy, and they got hold of some liquor and they all got pretty drunk, and they came back by home and his father stopped here at home, and him and Will started to Charlie Stowers’ and they stopped at Mrs. Fannie Nixon’s, and Will wanted to give her a drink. Rufus said that he went and asked her if she wanted a drink of liquor, and she said all right, and he poured out what he thought was a reasonable drink. He said she said to fill up the cup, and he filled it up and she drank it; then she said to pour out a drink for the next morning, and he did that. They then went to Charlie Stowers’, and Rufus said they come back, he went home, and Will went home. He said that Will went to Miss Fannie’s and caused this trouble, so she said. He insisted that a mob was going to kill him.

Cross-examination: He said that this alleged offense was committed on Thursday night, and this was on Saturday evening just two days afterward.

Austin Ravenel, for the defendant, testified: Think I am fourteen. Heard Pa say that. Last time I saw him before to-day was when they locked him up. Mr. Kidd came after him. Thursday night before, I went to a fish-fry with Mr. William McCurley, Mr. Mitch Adams, Joel Milford, Coyle Sanders, Rufe Adams, and Pa. Saw some whisky setting in the car. Rufus Adams took a drink. Did not see my father drink that night, but did the next morning. After we left the fish-fry we came home. We came back by Mr. Mitch Adams’ house. We walked from Mr. McCurley’s home, four of us. When I got to Doc Adams’ I went on home, and my daddy came on behind me. Heard him whistling. Don’t know what time it was when we left Doc Adams’, but it was pretty late. Don’t know what time I got home. It didn’t take me very long to walk from Doc Adams’ to our house. Was home when my daddy come. I pulled off my shoes, and he walked in, shut the door, and went to bed. Saw him the next morning. I got up the next morning and left him in the bed. Went to feed the mules, and Rufus Adams came over there. Me and him went back to the house together. My father was in the house patching a pair of pants. He had already got out of the bed. Left him in the bed when I went to bed. If he left the house that night I don’t know anything about it. Believe I would have heard him if he had left. I didn’t sleep sound that night. He could not have gotten out of the house without my hearing him. Didn’t hear him go out. He was there the next morning. Rufus Adams and I had a drink the next morning.

Cross-examination: Got up on Friday morning just as the sun was rising. Didn’t hear anything that happened on Thursday night after I went home. Didn’t hear any boys around home hunting possums. The reason I didn’t was there was nobody around, I reckon. When I got home Thursday night I pulled off my shoes and went to bed and went to sleep. Didn’t sleep all night. My father was in the bed with me. He come not long behind me. I had time to get in the door and he was coming by our barn. Don’t know what took place at Mrs. Nixon’s.

Charlie Stowers, for the defendant, testified: I live near Will Ravenel’s, and pretty close to Mrs. Nixon’s. Didn’t hear any noises at Mrs. Nixon’s from half past ten on. The first part of the night I was in town. That was the night these men went to the fish-fry. I didn’t go with them. I was back by twelve o’clock. Didn’t see Will Ravenel come to my house that night, and didn’t hear anybody down the road. Didn’t see Rufus Adams that night. Can see Mr. Bruce Temples’ house.

Curtis Kay, for the defendant, testified: Know Mrs. Fannie Nixon, and have had occasion to pass her house. Have seen her in an irrational frame of mind one time. She seemed to have a spell of some kind. Couldn’t say what the trouble was. She had a spell, and they all thought she was going to die. Drs. Hailey and Jenkins came while I was there. Mr. Nixon was there drinking. Couldn’t say that he acted like anybody drunk. She seemed to be torn up about something. She wrung her hands. She walked and seemed to be pretty strong.

Dr. T. R. Gaines, for the defendant, testified: Am a practicing physician. Have been practicing five years. Have never had any experience previous to this time, except in the medical college, and had three and a half years in the army, and one and a half-years in a hospital in Atlanta. There is no way of telling absolutely, without a microscopic examination, that the stain resulting from sexual intercourse is semen from a man. The fluid thrown off from the female reproductive organs resembles semen. You couldn’t distinguish that with the naked eye. A distinguishing-characteristic of a woman’s discharge is the ova, and that of a male is spermatozoa. The ova is a round body. The spermatozoa is shaped more like a tadpole. Wouldn’t say it was an easy matter to examine a person two days later, who is said to have had intercourse, to tell whether the stain on the outside of clothing or on the legs was the discharge of a man. It can be done with a microscope. A discharge from some men does not contain spermatozoa, which is the case with settled men or very old men. If this defendant is a normal man, it is my opinion that discharge from him will contain spermatozoa. It might have been possible for me to have taken a microscope down there and determine whether the discharge was from a man or woman. I wouldn’t say it was very probable after two days. I don’t know whether any expert can testify of his own knowledge, without a microscopic examination, whether a discharge is from a man or woman. It is not true that during sexual intercourse a woman ejaculates like a man. It is possible that through her ejaculation a discharge could get on her clothes and leg without sexual intercourse. You couldn’t tell whether it was from her or the man, unless you put it under a microscope. It would not be possible in every case to make an examination and tell whether or not the person she had intercourse with would leave evidence of having had the clap. In some cases he would, and in some cases he wouldn’t. Gonorrheal infection depends upon the stage the gonorrhea is in, whether acute or chronic. In most instances, if either of the parties had acute gonorrhea, it would show up, but not in every case. Think sixty per cent, of the cases would show up infection in the acute stage. An examination of the penis alone would not tell whether it was an acute or chronic case. In the acute case we have the white discharge with pain and blood on urination, and usually weakness from the back, general bad feeling and some temperature. In chronic stages we have what is known as occasional dripping instead of profuse discharge, dripping of the urine at the end of urination. General bad feeling is not so marked.

Cross-examination: How long spermatozoa will live depends upon where they are, and the conditions. It depends on which female organ they are deposited in, whether the vagina, the uterus, or the Fallopian tube. Gestation takes place in the uterus. Sometimes it begins in the uterus. If gestation starts in the uterus it stops right there. That is the normal place. The Fallopian tubes are 'the natural place for gestation to begin at times. If this alleged assault happened on the night of the 24th, I think there would have been signs of seminal fluid on the private parts of the female Saturday evening, between four and five o’clock, if we could recognize them. It will be possible to discover that, with the aid of a microscope, if we recognized such things. Don’t know whether they will be in the vagina two days or not. They would in the uterus. To determine whether or hot a given deposit is from a male or female, we would have to determine that by a microscopic examination. The ovum is thé egg. The spermatozoa is like a wiggletail under microscopic examination. I wouldn’t say in this case definitely whether you could tell two days after the alleged act that sexual intercourse took place. It is not natural or probable that a woman will ejaculate without there being some agitation from actual sexual intercourse. If there was any female seminal deposit in this case it would have been brought about by artificial means, but in diseased conditions we have that. Gonorrhea is transmitted by a germ. Seminal fluid is a white, starchy-like fluid, and if on clothes it would dry up like starch. In gonorrheal discharges you find the organism causing the gonorrhea.

Dr. W. E. McCurry, for the defendant, testified: It would be possible to discover spermatozoa in the vulva or the womb if I were to make an examination with a microscope two days after rape had taken place and actual penetration had been of the womb. Don’t think it possible for the spermatozoa to live outside the womb or on the clothing. They wouldn’t live probably longer than a few hours, not ov.er twenty-four hours. Don’t think there have been cases whether they lived as long as twelve months on hairs. You could recognize them dead or alive. In making an examination of the case two daj^s after the alleged rape I could probably distinguish spermatozoa in semen by a microscope or other means from the vagina; not actually from the clothing, but think the probability would be you could. To make an examination like that I think it essential to make a microscopic examination.

Dr. W. 0- Meredith for the defendant testified: It is not possible to determine spermatozoa in a discharge from a man without resorting to a microscope. They could not be discovered with the naked eye.

The defendant made a long and somewhat rambling statement, giving an account of his going to a fish-fry on Thursday night of the alleged offense, and a search by him and others for whisky on that occasion. Finally he got a gallon of liquor, for which he paid twelve dollars. He then said, “ You white men have a drink first.” William McCurley, the driver of the car, took a drink. Fufe Adams took a drink. Defendant took a drink. They stayed at the- fish-fry a half hour, and then started home. Got to Mitch Dooly’s where the Millford boy got out and took a drink going-down the road. They got to Mr. McCurley’s house, the defendant sitting behind in the automobile with Adams: His boy was holding the jug. Adams said, “Will, you hold that sister, and don’t break it.” Before they got to Mr. McCurley’s house Fufe Adams said, “ I will tell you, if I had a wife to-night she sure would be--,” and he said to defendant, “ Will, what would you do ? ” and the defendant said, “ I would try if she would give it to me.” And they all burst out in a laugh. They went on home, and they got out at Mr. MeCurley’s. Adams said, “ We had better take it again.” He took a drink, and the defendant took a drink. When they got in Mr. Adams’ yard, defendant said, “ Do you want a drink ? ” and he said “ No, take it home with you. I will be there in the morning.” Adams went in the house. The defendant started on. Adams said, “ Will, I want some of that whisky,” and the defendant said, “ Go in the house and get a bottle and pour out some.” It was awful mean liquor, and he couldn’t drink much of it. The defendant and his little boy went on home, and the boy beat him home a little bit. Went in, shut the door, and went to bed. The next morning pretty soon, Eufus Adams came over there. “I said, ‘Here come Fufe for his dram.’ He didn’t say anything about it, and’ got to telling something about Mr. Mitch Dooley and a darkey having trouble on account of liquor. We heard somebody talking, and he said, ‘ Yonder comes Mitch now and Pa,’ another white fellow. Dooly said ‘Will, I want a dram,’ and I said, ‘ Well, we’ve got it,’ and he said ‘ That is what me and Mr. Adams and this man come here for.’ ” He went back of the barn and got it and took it and set it down on the table, and said, “ There it is, gentlemen, help yourself,” and they drank and said toasts and big tales and holloed and laughed. They stayed over three hours, as near as he can tell. They went back to Mr. Adams’, and he went with them. That was Friday morning. They went up the road by Miss Fannie’s, and stopped the car where the road turns out to Charley Stowers.’ Saturday evening, about the middle of the evening, he and his boy came to town and came by Miss Fannie’s. Walked to the Backet store, and was going opposite to Mr. Alford’s, and Mr. Kidd called to him, “ Will, come to me,” and “ I walked up to him and I said ‘ what is it ? ’ and he said ‘ Come to the court-house with me,’ and I said, ‘ What is that for ? ’ and he said, ‘You will find out.’ He told Mr. Snow Skelton to handcuff me and lock me up. I said, ‘ Captain, what have you got me for ? ’ He said I was charged with raping old Miss Nixon, and he said, ‘Bufe told me that he went up there and poured out one teacupful of liquor and he went back and poured out another one and give it to her and went on home,’ and he said ‘ They done that, Will, to make up this, and to get your crop.’ That is what he told me. That is the truth of the thing.”

Mitch Dooley, for the defendant, testified: Know Will Bavenel. Saw him on or about Friday after this happened at Mrs. Nixon’s. Saw him over there at a gin at his house. I, Mr. Adams, and-were there together. Guess we stayed half an hour over there. Saw Mrs. Nixon on Sunday evening after that at Alex Temples.’ She didn’t make any statement to me. She said that Mr. Monroe Kidd said that negro would be killed before night. She could rest assured of that. She said, I think, that she blamed the white folks for it as much or more as she did the negro.

Burt H. Morehead, for the defendant, testified: Bemember seeing Mrs. Nixon one time at my home, something, like two years ago. It was sometime in the forepart of the night about nine or ten o’clock. No one was with her. She came and holloed. I had gone to bed. My wife went out, and she was inquiring as to where Mr. Snelling lived. It was not but a little piece. She wanted my wife to go with her to Mr. Snelling’s. She went with her up to Mr. Snelling’s. Mr. Snelling’s folks weren’t at home, and she came back to my house and spent the -night. I wouldn’t think Mrs. Nixon was in her right mind at the time.

Cross-examination: She said she had got lost.

John B. Morris and T. 8. Mason, for plaintiff in error.

George M. Napier, attorney-general, A. 8.. Shelton, solicitor-general, and Seward M. Smith, asst, atty.-gen., contra.  