Gardner v. State
| Decision Date | 18 April 1888 |
| Citation | 7 S.E. 144,81 Ga. 144 |
| Parties | GARDNER v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Overruling a motion in arrest of judgment based upon the ground that no indictment was found by a grand jury, but the trial was had upon a mere accusation, is matter for direct exception, and not cause for a new trial. As to dispensing with indictment and substituting accusation, in the city court of Atlanta see Darden v. State, 74 Ga. 842.
On the trial of a man for a single act of adultery with one of his witnesses, letters written by him previous to the act, and a conversation, also previous, had with his wife and his witness when he was not present, all tending to show that he his wife, and his witness had, several months before the alleged adulterous act, combined to impute to a certain dentist criminal intercourse with the witness and to "blackmail" or extort money from him, were not admissible testimony in behalf of the state to impeach, the witness or illustrate her relations to or with the accused, she not having been interrogated as to these matters when under examination, so as to lay the foundation, for contradicting her, and thereby impairing her credit. The admission of this illegal testimony was highly prejudicial to the accused, as its tendency was to render him odious and infamous in the estimation of the jury. It had no relevancy whatever to the alleged criminal act for which he was on trial.
That, after receiving the girl into his house for medical treatment, the accused would not and did not suffer her to return whence she came, and gave a false account of her condition, was relevant and admissible testimony, as showing the origin of his opportunity, and the res gestæ of its continuance.
That a mature male of the human species has normal powers of virility is matter of legal presumption until the contrary appears, and the burden of making it appear by evidence, satisfactory to the jury is on him who asserts it.
The court erred in not granting a new trial on the sixth, seventh, and eighteenth grounds of the motion.
Error from city court of Atlanta; VAN EPPS, Judge.
Accusation of fornication and adultery.
Arnold & Arnold, Gartrell & Ladson, and L. W. Thomas, for plaintiff in error.
H. C. Glenn, for the State.
1. Gardner was tried for the correlative side of the act just considered in the case of Hunt v. State, ante, 142. He also was found guilty. He made a motion in arrest of judgment, on the ground that there was no indictment found by the grand jury; that the case rested on an accusation in the city court of Atlanta; that the verdict was a nullity; and that be could not be punished on mere accusation. The bill of exceptions makes no allusion to the motion in arrest of judgment. If the judge denied it, the denial is unexcepted to in the bill of exceptions; but the denial of the motion in arrest is made one of the grounds of the motion for a new trial. Of course, the refusal to arrest a judgment because there is no indictment, is not ground for the grant of a new trial. Why it was brought into the motion we do not know. We can make no authoritative ruling upon it, but if we could, the question would be found to be settled against the point in Darden v. State, 74 Ga. 842. The identical question was decided there with reference to bastardy; and it would seem that adultery would be as subject to trial on accusation as bastardy. They are both misdemeanors, and the act organizing the city court of Atlanta provides expressly for this mode of prosecution.
2. In the course of the trial two letters were offered in evidence by the state, one written and signed by Dr. Gardner, and the other written by him, but, signed in the name of his wife. These letters bear date, one in September, and the other in October, 1886, some months before this act of adultery, as dated by the witness, was committed. In connection with these letters, the...
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