Conley v. State

• Decision Date: 12 October 1945
• Docket Number: 30902.
• Parties: CONLEY v. STATE.
• Court: Georgia Court of Appeals

35 S.E.2d 569

73 Ga.App. 53

CONLEY v. STATE.

No. 30902.

Court of Appeals of Georgia, Division No. 2.

October 12, 1945

Syllabus by the Court.

1. Where the child of the prosecutrix has been identified and exhibited to the jury, the resemblance of the child to the defendant on trial for seduction is a circumstance which the jury may consider as tending to prove the criminal intimacy of the parties, but not the promise of marriage. State v Malonee, 154 N.C. 200, 69 S.E. 786(4).

2. It is beyond the range of legitimate comment for State's associate counsel over objection to bring or project into the case a legitimate child of the defendant, who was merely in the courtroom and to whom no reference had been made by the evidence or otherwise, for the purpose of arguing in the concluding argument of the case that the legitimate child resembled the illegitimate child (who had been identified and exhibited to the jury).

3. Where the defendant is on trial for seduction there is no error or impropriety in the court's reading to the jury the full definition of seduction as contained in section 26-6001 of the Code; but where the indictment alleges that the seduction was accomplished only by 'persuasion and promises of marriage,' and does not charge that any 'other false and fraudulent means' were used by the defendant, the court should take pains to instruct and distinctly explain to the jury, or at least in effect make clear to them, that the State relies for conviction upon proof of persuasion and promises of marriage only, and that the defendant can not be convicted upon proof only of 'other false and fraudulent means' with which he is not charged in the indictment. Jones v. State, 90 Ga. 616(3), 16 S.E. 380.

4. 'Where evidence is admissible for one purpose, it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible in the absence of a request to instruct the jury.' Central of Georgia Ry. Co. v. Brown, 138 Ga. 107(2), 74 S.E. 839.

5. On a trial for seduction, acts and sayings of the defendant bearing upon the principal facts, both before, at the time of, and after the seduction, but pending the marriage engagement, are admissible in evidence. McTyier v. State, 91 Ga. 254(1), 18 S.E. 140; Wood v. State, 48 Ga. 192, 15 Am.Rep. 664; Parker v. State, 11 Ga.App. 251, 252(2), 75 S.E. 437.

6. The other questions raised by the special grounds of the motion for new trial may not arise on another trial of this case, and we deem it unnecessary to consider them. Of course, the case being reversed on the special grounds, the general grounds of the motion will not be considered.

S. F. Memory, of Blackshear, and B. D. Murphy, of Atlanta, for plaintiff in error.

John W. Bennett, Sol. Gen., of Waycross, for defendant in error.

MacINTYRE Judge.

1. The defendant was being prosecuted for seduction and the prosecutrix claimed that, as a result of the criminal intercourse which was brought about by the persuasion and promises of marriage of the defendant, the baby in the courtroom with her was his illegitimate child. As the illegitimate child had been identified by the prosecutrix before the jury, without objection, the trial judge did not commit prejudicial error in permitting the associate counsel for the State, in his argument to the jury, to contend that a resemblance existed between the child and the defendant, as putative father, since the jury had equal opportunity, along with the associate counsel, to view both the child and the defendant and were not compelled to accept the conclusions of the associate counsel. See in this connection, Posey v. State, 46 Ga.App. 290(3), 167 S.E. 340; State v. Malonee, 154 N.C. 200, 69 S.E. 786(4); Parker v. State, 11 Ga.App. 251(2), 75 S.E. 437. However, the resemblance, if any, was a circumstance which the jury could consider as tending to prove the criminal intimacy of the parties, but not the promise of marriage. Nevertheless, we think that it was beyond the range of legitimate comment for the State's associate counsel, for the first time in the concluding argument, to force or project into the case, over the objection of the defendant, matters concerning the personal appearance of an innocent legitimate baby--or a grown-up child for that matter--of the defendant, concerning which child no evidence had been introduced, and to whom no reference had theretofore been made, when the child was sitting in the courtroom at the time with the innocent mother, wife of the defendant, or elsewhere, for the purpose of arguing that the legitimate child resembled the illegitimate child of the prosecutrix. The law forbids "the introduction into a case, by way of argument, of facts not in the record, and calculated to prejudice the accused." Brooks v. State, 55 Ga.App. 227, 232, 189 S.E. 855. It might be noted that counsel was not arguing that the child's presence in the courtroom was brought about by the defendant or his counsel for a motive of any kind which was intended to affect either the court or the jury or for any other ulterior motive. See Adkins v. Flagg, 147 Ga. 136 (2-a), 93 S.E. 92. As the case is being reversed upon another ground, we do not decide as to whether such comments were prejudicial to the defendant, or whether the judge abused his discretion in allowing them over objection.

2. The defendant was charged only with committing seduction by 'persuasion and promise of marriage.' The defendant contends that 'the failure of the court to instruct the jury that the State relied for conviction only upon proof that the prosecuting witness had been seduced by persuasion and promises of marriage' was reversible error. The language relative to seduction brought about by persuasion and promises of marriage or other false and fraudulent means was that the judge, in the first instance, stated to the jury that the defendant was charged in the indictment with seducing the prosecutrix 'by persuasion and promises of marriage.' Thereafter, he gave to the jury the full definition of the crime of seduction as contained in section 26-6001 of the Code, as follows: 'If any person shall, by persuasion and promises of marriage, or other false and fraudulent means, seduce a virtuous, unmarried female, and induce her to yield to his lustful embraces, and allow him to have carnal knowledge of her, he shall be punished by imprisonment and labor in the penitentiary for not less than two nor more than twenty years.' (Italics ours.) He thereafter charged: 'I charge you further, that it is no defense to the charge of seduction, when the act has been satisfactorily proven, that the personal conduct of the unmarried female may have been imprudent, improper, or immodest, short of actual sexual intercourse prior...