Cook v. The State Of Ga.

Citation11 Ga. 53
Decision Date31 January 1852
Docket NumberNo. 10.,10.
PartiesGeorge W. Cook, plaintiff in error. vs. The State of Georgia, defendant.
CourtSupreme Court of Georgia

Indictment for incestuous adultery, in Marion Superior Court. Tried before Judge Iverson, September Term, 1851.

The indictment in this case alleged, that " George W. Cook, being a married man, in the County and State aforesaid, on the first day of May, in the year 1851, and on divers other days and times, before and after that day, did, then and there (and on said other days and times) commit divers acts of incestuous adultery, by cohabiting and having sexual intercourse with one Lucinda Cook, an unmarried woman; she the said Lucinda Cook, being then and there, the daughter of him, the said George W. Cook, contrary to the laws, " &c.

On the trial, defendant's counsel moved to quash the indictment. 1st. Because it did not aver that Lucinda Cook was the legitimate daughter, of the whole blood, of the defendant, by her mother, to whom he was legally married.

2d. Because it alleges, " divers other times, before, &c." when it should aver and be confined to a particular date.

The Court overruled the motion, saying that he had doubts upon the question, and having such doubts, he would give the State the benefit of them; because the State was not allowed to carry the case to the Supreme Court. To this decision defendant excepted.

The State proposed to prove by defendant's admissions, that Lucinda Cook was his daughter, and that her mother was his lawful wife, to whom he had been legally married. Defendant's counsel objected, and insisted that the marriage should be proved by the record of the license and return thereon; and the mother identified by witnesses who were present at the marriage; and that neither proof of cohabitation, reputation or confessions, nor all combined, are admissible, without proof of the marriage in fact; and that the alleged daughter is the legitimate offspring of such marriage.

The Court overruled the objection and admitted the evidence, and defendant\'s counsel excepted.

Counsel for defendant requested the Court to charge the Jury, that the law was as insisted on by counsel, as to the proof of marriage, &c. The Court refused so to charge, and defendant excepted.

On these exceptions error is assigned.

A. Morton, for plaintiff in error.

Sol. Gen. Williams, for defendant.

By the Court.—Nisbet, J. delivering the opinion.

The indictment in this case was sought to be quashed, upon the ground "that it does not aver that Lucinda Cook was the legitimate daughter, of the whole blood, of the defendant, by her mother, to whom he was legally married." The motion to quash, was, as we believe, properly overruled by the presiding Judge. The rule of this Court, as to setting out the offence, is well settled: it is the rule which the Legislature has prescribed. If the indictment charges the offence in the language of the Code creating it, or so plainly and distinctly, that the Jury can clearly understand its nature, we hold it sufficient. The offence charged in this indictment is incestuous adultery. The Penal Code simply declares, that if any person shall commit incestuous fornication or adultery, such person so offending, shall, on conviction, be punished by imprisonment and labor, &c. The indictment avers that the defendant, being a married man, did, on the first day of May, 1851, and on divers other days, before and after that day, commit divers acts of incestuous adultery, by cohabiting and having sexual intercourse with one Lucinda Cook, an unmarried woman—she, the said Lucinda Cook, being then and there, the daughter of him. the said George W. Cook—contrary to the laws, &c. I do not see but that this description of the offence is quite sufficient to enable the Jury to understand the nature of it. They, as sensible, although unprofessional men, could not fail to see that they wereimpanneled to try George W. Cook for the offence of incestuous adultery. They could not mistake it for any other offence. The charges are that he was, on a day named, guility, not of adultery, but incestuous adultery, by having sexual intercourse with Lucinda Cook, being then and there, his own daughter; and that he was a married man.

What constitutes the crime of incestuous adultery? What are its elements? Marriage of the defendant, the fact of sexual intercourse, and the relation of the parties within the Levitical degrees: all of which are averred, and so plainly as to be issuable— so plainly, that the Jury are obliged to understand, that they are to find all the issues against the defendant, before they can find him guilty.

Another exception to the indictment was, that the facts charged make a case of incestuous fornication, and no conviction, therefore, could be had on it for incestuous adultery. Here the defendant is charged to be a married man, and the woman an unmarried female. The exception goes upon the idea that the crime of adultery is not complete, unless both parties are married. Such is not the law. If both are married, the connection would be adulterous as to both. Since one is married in this case, to wit, the defendant, his crime is incestuous adultery. The woman being unmarried, her crime is incestuous fornication. 1 Yeates, 6. 2 Ball. 124.

Again, the indictment was sought to be quashed, on the ground that it does not charge the offence to have been committed on a particular day. It is, no doubt, claimed to be uncertain, because, after charging the offence to have been committed, on a day certain, to wit, the 1st day of May, 1851, it proceeds to say, and on divers other days and times, before and after that day. These words may be rejected as surplusage, a day certain having been charged. See 2 Mason's R. 140. 1 Starkie's Crim. Ple. 235. Rose vs. Redman, 2 Leach C. C. 536. 1 Ibid, 127. Rejecting them, time is averred with sufficient certainty.

Any day previous to the finding of the indictment will do, except when time enters into the nature of the offence; and the offence may be proven on any day, within the period of Limitations, dating back from the finding of the bill. 4 Geo. R. 341. 1 Chitty\'s C. L. side page, 224, \'5. 1 Stewart & Porter, 208. 1 Tyler, 295.

When the presiding Judge determined upon these motions to quash the indictment, he remarked that he had doubts about the law, and having such doubts, he would give the State the benefit of them; because the State was not allowed to carry the case to the Supreme Court. Counsel for the defendant below have brought this remark here as error. This remark is no ruling; it is the expression of a reason for ruling as he did against the plaintiff in error. We are not disposed to treat it as an irregularity to be censured, much less as an error to be corrected. It is to be feared, in these days of reform, that the Judges will be so strictly laced, as to lose all power of vigorous and healthful action. I have but little fear of judicial power in Georgia so aggrandizing itself, as to endanger any of the powers of other departments of the government; or to endanger the life and liberty of the citizen; or to deprive the Jury of their appropriate functions. The danger rather to be dreaded is making the Judges men of straw, and thus stripping the Courts of popular reverence, and annihilating the popular estimate of the power and sanctity of the law. I am not, therefore, disposed to watch with great vigilance every act, phrase or sentiment, that may fall from the Court, with the hope of detecting an indiscretion, or fabricating an error. Surely some discretion ought to be allowed to able, pains-taking, conscientious men, as to the mere etiquette of judicial procedure. We are not inclined to regard this as an indiscretion, even, of which the plaintiff in error has any right to complain; because, instead of prejudicing his rights before the Jury, it would seem rather to be calculated to incline them towards acquittal; that is to say, if such a remark, made in the hearing of the Jury, could have any effect at all, upon the mind of a conscientious Juror, which I seriously question, it would incline him, if he was not fully satisfied of his guilt, to acquit one, against whom the law had been ruled thus doubtingly. But what principle is violated in the remark? The reason given, for affording to the State the benefit of the Judge\'s doubts, is a true one. The State, in criminal cases, cannot take the cause up; the defendant can. It was said in the argument, that the great and humane principle of the Common Law, that if there is reasonable doubt as to guilt, the prisoner shall be acquitted, was violated. We recognize this just and benevolent rule of conduct, as applicable to Jurors, when called upon to pronounce upon guilt or innocence. Nay, more; we hold that no just Judge will, or ought to be permitted, to rule a principle of law against any man, either in criminal or civil causes, against his paramount convictions. A Judge who would do this, is worthy of impeachment. But a Judge may doubt, whilst he gives judgment, with a preponderance of intellectual evidence in favor of his decision. Perfect assurance that he is right, cannot always be had. Decide the law he must—he has no volition in the matter. With doubt, or without doubt, it is his duty to decide every question of law which properly arises in a cause; and if he decides honestly, with the best energy of his intellect— with the best industry of his circumstances—and the best lights of his conscience—he is amenable to no tribunal, human or divine, for the error of his judgment. Is it expected that Judges are always to decide without doubt? If it is, it is a vain expectation. There are times when the ablest doubt, and good men and able Judges doubt oftener than the weak and unconscientious. " Fools rush in where Angels fear to tread!" One of the ablest, most conscientious, and most renowned of English Chancellors, Lord Eldon, was called the doubting Judge; yet, a great...

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