Dougherty v. State
| Decision Date | 04 December 1909 |
| Docket Number | 2,218. |
| Citation | 66 S.E. 276,7 Ga.App. 91 |
| Parties | DOUGHERTY v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where newly discovered testimony is strictly cumulative, and merely increases the weight of evidence, leaving still in doubt a material question at issue, a new trial will not be granted but, where the newly discovered testimony is of a direct and positive character as to the existence of a material fact which was on trial attempted to be shown by circumstantial evidence alone, a new trial may be granted where such newly discovered evidence, if the witness be credited, would remove the doubt upon the material point, and would probably produce a different result on the second trial.
Error from Superior Court, Forsyth County; N. A. Morris, Judge.
Homer Dougherty was convicted of crime, and brings error. Reversed.
H. L Patterson, for plaintiff in error.
J. P Brooke, Sol. Gen., for the State.
Homer Dougherty was convicted of the crime of seduction, and he brings error to this court challenging the correctness of the judgment of the lower court in overruling his motion for a new trial. The general grounds of his motion may be disposed of by the statement that, while the evidence of his guilt depends entirely upon the testimony of the injured female, her testimony, if credible (and this was a matter entirely for the jury), was sufficient, under the law applicable to the facts, to sustain the verdict against him.
The special assignments of error contained in the amended motion for a new trial relate to excerpts from the charge of the court and to newly discovered testimony. The first excerpt objected to is that in which the court defines the offense of "seduction." This definition is in the language of this court in the case of Woodard v. State, 5 Ga.App. 447, 63 S.E. 573, and of decisions of the Supreme Court in numerous cases. Cherry v. State, 112 Ga. 871, 38 S.E. 341; Wilson v. State, 58 Ga. 329; O'Neill v. State, 85 Ga. 408, 11 S.E. 856; Keller v. State, 102 Ga. 513, 31 S.E. 92; Disharoon v. State, 95 Ga. 351, 22 S.E. 698.
The second excerpt objected to is that the court, in charging the jury, incorrectly stated in one part of his charge that "persuasion or promise of marriage would be sufficient to authorize a verdict of guilty." The use of the disjunctive, "or," instead of the conjunctive, "and," is shown by the context of the charge to have been purely a lapsus, and could not possibly have misled the jury. The court in the charge repeatedly instructed the jury that it required both "persuasion and promise of marriage" to constitute the offense. This incorrect statement of the law, when considered in connection with the entire charge, is manifestly a mere verbal inaccuracy, and for this reason we do not think it of sufficient importance upon which to base a judgment of reversal. Lyle v. State, 69 Ga. 762; Hagar v. State, 71 Ga. 164; Moses v. State, 60 Ga. 139.
The third excerpt objected to is as to the form of the verdict. The court said: "There is one of three verdicts you can render in this case." It is insisted that this language conveys an intimation from the judge that in his opinion the evidence in the case was sufficient to authorize the jury to find the defendant guilty of the offense of seduction. We think the objection entirely without merit.
As to the ground of newly discovered testimony we have made a careful and critical examination of the alleged newly discovered testimony, in connection with the evidence on the trial of the case, and we have reached the conclusion that the ends of justice demand another trial on this ground. As before stated, the guilt of the defendant rests solely on the uncorroborated testimony of the injured girl. She states: That the defendant and herself lived on the same farm; that, when she was about 14 years of age, he began to pay her visits in the afternoons when she was engaged in milking the cows in the cow pen, a short distance from her home; that these visits continued for several months, the defendant making love to her, and they finally became, to use her own language, "sweethearts"; that in about six months after the courtship began he asked her to marry him, and she consented to do so; that following this engagement he made repeated requests that she would consent to sexual intercourse, on each occasion repeating the promise of marriage; and that eventually, relying upon this promise, she was persuaded to yield to his request. She states that this intercourse between them continued for some months, and she became pregnant, and, having informed the defendant of the fact, he made several suggestions of a criminal operation, which she refused to adopt, and he ceased...
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