Adams v. State, 24120.

• Decision Date: 07 February 1935
• Docket Number: No. 24120.,24120.
• Parties: ADAMS. v. STATE.
• Court: Georgia Court of Appeals

50 Ga.App. 507

179 S.E. 223

ADAMS.

v.STATE.

No. 24120.

Court of Appeals of Georgia,

Division No. 1.

Feb. 7, 1935.

Syllabus by the Court.

The evidence supports the verdict.

The discretion of the court was not abused in overruling the ground of the mo-tion for a new trial complaining of error in not continuing the case on account of an absent witness.

The ground based upon newly discovered evidence cannot be considered, because the supporting affidavits of the defendant and his counsel did not comply with the requirement of the Civil Code 1910, § 60S6, that "it must appear by affidavit of the movant and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence."

Error from Superior Court, Treutlen County; Eschol Graham, Judge.

Harvey Adams was convicted of seduction, and he brings error.

Affirmed.

W. A. Dampier, of Dublin, and H. W. War-nock, of Soperton, for plaintiff in error.

M. H. Boyer, Sol. Gen., of Hawkinsville, for the State.

MacINTYRE, Judge.

At the February term, 1933, of the superior court of Treutlen county, the grand jury returned an indictment charging Harvey Adams with the offense of seduction. At the August term, 1933, of that court, the defendant was convicted. Judge J. Saxon Daniel, who presided at the trial of the case and overruled the defendant's motion for a new trial, resigned, and the motion for a new trial was heard and overruled by Judge Eschol Graham of the Oconee circuit. The record raises three questions, --whether the evidence supports the verdict; whether the court erred in refusing to continue the case because of an absent witness; and whether the court erred in refusing to grant a new trial because of alleged newly discovered evidence.

After testifying that she and the defendant had been friends since childhood and had become engaged to get married, the alleged victim testified in part as follows: "I am seventeen years old. I know * * * Harvey Adams. * * * He came to see me for three years. * * * I liked him, and he said he liked me--said he loved me, and at the time I believed that he did. He promised to marry me * * * last March. I had been going with him over two years then. • * * I did not have any other sweetheart--no other young man going with me or courting me; he was the only one. * * * After we were engaged, I yielded to his lustful embraces and permitted him to have in-tercourse with me. That was in June after we became engaged. It was * * * March, 1932, when we became engaged, and I yielded to him in June, 1932. * * * The time for our marriage was set for the first Sunday in October. It was March when we set the date, and after that I yielded to him. I yielded to him because I loved him and I believed he loved me. * * * No other man had intercourse with me prior to the time he did. I have never been married. He is the only man that ever had intercourse with me. From that intercourse I became pregnant, and discovered that I was pregnant in July after I first yielded to him. * * * I had a child, and it lived five hours. It was born the 17th of March this year.* * * The defendant offered to marry me, but he never did marry me. On Christmas day * * * he left my home at five o'clock in the morning and said he would be back that day and we would be married, but he never came back, nor did he ever marry me. * * * I did not consent when he first asked me. * * * He insisted, and told me he would marry me. We were already engaged, and he told me at the moment that he would marry me--repeated it He said: 'Oh, we will be married in October.' He said: 'If anything gets the matter with you, I will marry you right away.' I let him have intercourse with me for the love 'and confidence I had in him, and because he told me he would marry me if I got in that condition."

The defense was that the defendant had never had intercourse with the girl, and that a different man was the father of her child. We are quite sure that the jury were warranted in concluding that the transaction was not meretricious and that the defendant was guilty of the offense charged. We hold that the court did not err in overruling the general grounds of the motion for a new trial. See Pough v. State, 7 Ga. App. 610, 67 S. E. 695; Wilson v. State, 58 Ga. 328 (1), 330, 331.

Upon the motion for a continuance, the defendant testified that he expected to prove by Dr. Kennedy that Lamar Mixon took Miss B. to his office for an examination; that the doctor examined her, and asked who was responsible for her condition, and she said that it was Lamar Mixon; that the doctor then called Mixon and told him that he could not do anything for Miss B., and Mixon said "that was not the first time he had gotten in trouble like this, and he got out of that and, by God, he would get out of this." It appears from the motion for a continuance that the defendant was represented by Mr. Warnock and Mr Dampier. During the course of the defendant's examination Mr. Jackson, who appears to have been assisting the state in the prosecution, said: "I would like to know if any of the lawyers excused him." Replying to this inquiry, Mr. Warnock stated in substance that he had not excused the witness, but that he had told him that it would be all right for him to go if the solicitor was "going to carry the case over....