Barton v. State

• Decision Date: 07 April 1936
• Docket Number: 25389.
• Citation: 185 S.E. 530,53 Ga.App. 207
• Parties: BARTON v. STATE.
• Court: Georgia Court of Appeals

185 S.E. 530

53 Ga.App. 207

BARTON v. STATE.

No. 25389.

Court of Appeals of Georgia, First Division

April 7, 1936

Syllabus by the Court.

1. An indictment for seduction will support a conviction for fornication. A plea of not guilty to such an indictment puts in issue both offenses. It is not error for the court so to state in giving the issues to be tried, although the defendant in his statement may have said: "I am not guilty of seduction, I am guilty of fornication."

2. Under the evidence the request to charge that, "If you find that Edna Hughes consented and had sexual intercourse with the defendant, and thereafter the defendant by persuasion and promises of marriage induced her to repeat the act, the defendant could not be found guilty of seduction," submitted in writing to the court before the jury retired, should have been given.

3. For the solicitor general in a seduction case to state substantially that, if the defendant went to the penitentiary, it was his own fault, as he could have stopped the prosecution at any time by marrying the prosecutrix, and that he (the solicitor) would then and there make the proposition that, if the defendant would marry her and give a name to the little boy (pointing to the child then in court with its mother, the prosecutrix), the prosecution would then be stopped and the case against him dismissed, is highly prejudicial and erroneous, and, where a motion for mistrial was made and was overruled by the judge and the solicitor was reprimanded, this court will grant a new trial, where it does not appear that the prejudicial effect of such remarks was removed by the action of the judge.

4. The remaining assignments of error are without merit. The judge erred in overruling the motion for new trial for the reasons above pointed out.

Error from Superior Court, Gordon County; C. C. Pittman, Judge.

Glenn H. Barton was convicted of seduction, and he brings error.

Reversed.

Maddox Matthews & Owens, of Rome, and J. G. B. Erwin, of Calhoun for plaintiff in error.

John C Mitchell, Sol. Gen., of Dalton, for the State.

GUERRY Judge.

The defendant, Glenn H. Barton, was convicted of seduction and complains of the overruling of his motion for new trial. At the time of the alleged seduction, in July, 1932, the prosecutrix was 15 years old and the defendant 18. They met for the first time Sunday, July 3d. The evidence fails to fix with definiteness as to the date in July when the first intercourse took place. The prosecutrix testified: "One night he came down and we went to a show in town, and when we started back and before we got home he turned off a road leading to Yarborough's pond and he stopped on that road and he embraced me and he says, 'Edna, do you love me?' and I says, 'Certainly Glenn, I love you more than anybody else in the world,' and he says, 'Do you love me enough to marry me?' and I says, 'I don't know about that, I am rather young yet and I don't know anything about the ways of the world much,' and he says 'Answer me,' and I says, 'Yes,' and he said then, asked me the question, 'Will you marry me sometime?' and I answered, 'Yes."' On cross-examination the witness testified: "This first intercourse occurred on the road leading to Yarborough's pond." It is not shown how many trips were made to Yarborough's pond nor on which trip the intercourse occurred. The defendant left Gordon county on July 22d to go to Chicago, and did not come back until the latter part of September. The prosecutrix further testified: "I couldn't tell you how many times I had intercourse with him before he left for Chicago; it was most all the time, so many I can't recall. He came three or four nights out of every week, and of course that don't mean I had intercourse with him every time, but practically every time he came. * * * I allowed him to have intercourse with me because I loved him. Prior to that time he had made love to me and told me he loved me. I believed him. He talked about marrying me. He said we were going to be married. As to what he said about loving me and marrying me at the time I allowed him to have the first intercourse, he says, 'you don't care if we have intercourse now, do you, since we are already engaged,' and I says 'I don't know.' * * * I had confidence in him and believed him, and yielded to him by reason of that and by reason of my love for him. He promised to marry me and I believed he would marry me, and I allowed him to have intercourse because of that."

A number of letters written by the defendant, at this time, to the prosecutrix, were introduced in evidence. These letters were couched in the most ardent love language and were poetic in form, not to say content. The spirit and fervor, if not the poetic polish, of Byron were present in them. When the defendant returned from Chicago, prosecutrix testified that their relations continued, and some time in November, she became pregnant and a child was born August 29, 1933. The defendant admitted having sexual intercourse with the prosecutrix, but denied any talk or promise of marriage at any time. Eight letters written by defendant to the prosecutrix were introduced in evidence by the state, and, though couched in the most ardent love language, contained no reference to marriage. Some of these letters, according to the prosecutrix, were written before, and some after, the first intercourse. The defendant in his statement said that he met the prosecutrix on July 3d, and had intercourse with her on a night or two later while they were in the back seat of an automobile, the front seat being occupied at the time by her sister and another boy, and that these relations continued until July 22d. He wound up his statement to the jury by saying: "I am guilty of fornication but I am not guilty of seduction." The defendant introduced letters written to him by the prosecutrix while he was in Chicago, containing the most suggestive and lascivious language. One was written in Atlanta where she and her sister had come with two boys and spent the night at a tourist camp. She explained this by saying that they came to visit a girl friend in Atlanta, but the friend was not there, and they were at the mercy of the boys they came with. Any improper relations with the other boy at this time were denied by the prosecutrix. This boy, however, testified that he spent the night with her, and had sexual intercourse with her. We will not set out the evidence in further detail nor go into any discussion thereof, as a new trial will be granted because of errors committed during the trial.

There are assignments of error which complain that the court, after stating the charge of seduction as set forth in the indictment, charged as follows: "There is also embraced within the charge and within the range of the evidence in this case the lesser offense of fornication. He pleads not guilty to each of these charges, and the plea and the charges form the issues which you are to try and determine by your verdict." The error assigned on this charge is that by his statement the defendant admitted his guilt of fornication, and that he was entitled to have this issue eliminated from the consideration of the jury and have the single issue of...