Hammock v. State

233 Ga. 733 (1975)

213 S.E.2d 618

HAMMOCK v. THE STATE.

29521.

Supreme Court of Georgia.

Argued January 20, 1975.

Decided February 5, 1975.

Rehearing Denied February 18, 1975.

Garland & Garland, Edward T. M. Garland, for appellant.

Lewis R. Slaton, District Attorney, R. David Petersen, Assistant District Attorney, Julius C. Daugherty, Jr., for appellee.

UNDERCOFLER, Presiding Justice.

James Roswell Hammock was convicted of the crime of rape and sentenced to twenty years imprisonment. He appeals from this judgment. Held:

1. The appellant contends that the trial court erred in admitting evidence concerning the victim's possible affliction with cervical cancer. The evidence shows that the victim knew in June before the rape occurred in October, 1973, that she might have cervical cancer.

"Evidence of the physical and mental condition of the female before or at the time of the commission of the alleged offense is admissible in so far as it bears on the question of her consent or ability to resist." 75 CJS 529, § 57.

It follows that this evidence was admissible.

2. The victim testified that the second time the defendant hit her, he broke the top plate of her false teeth; that she was strangling on her teeth and blood and managed to spit them out of her mouth; and that subsequently a woman who identified herself as the defendant's mother called her and offered to pay her $200 for her teeth.

The defendant objected to the evidence that his mother called the victim. The victim testified that she *734 could not identify the voice of the defendant's mother. The trial court then instructed the jury to disregard the evidence that the defendant's mother telephoned the victim.

There is no merit in this enumeration of error.

Judgment affirmed. All the Justices concur, except Jordan, Ingram and Hall, JJ., who dissent from the ruling made in Division 1, and in the judgment.