Goodrum v. The State Of Ga.

• Decision Date: 31 January 1878
• Parties: Goodrum. v. The State of Georgia.
• Court: Georgia Supreme Court

60 Ga. 509

Goodrum. v. The State of Georgia.

Supreme Court of the State of Georgia

(January Term, 1878.)

[This case was argued at the last term and decision reserved.]

Criminal law. Husband and wife. Witness. Practice in the Superior Court. New trial. Practice in the Supreme Court. Before Judge Pottle. Madison Superior Court. March Term. 1877.

The motion for a new trial was based upon the following grounds:

1st. Because the court erred in ruling out the evidence of W. P. Smith, the husband of prosecutrix, of its own motion, after he had been examined by defendant's counsel and turned over to the state, such testimony having been admitted without objection.

2d. Because the court erred in refusing to allow said Smith to testify as to whether, on the night of the offense, he did not meet prosecutrix and defendant at the bars outside of the house.

3d. Because the court erred in holding said Smith to be anincompetent witness in this case.

*These grounds the presiding judge certified with this explanation: The witness Smith had been sworn and examined without objection from the state. Before allowing the cross-examination to proceed, the court inquired upon what principle was this evidence admissible? Counsel for the state then objected to the competency of Smith as a witness. This objection the court sustained so far as it related to the facts already detailed by him.

The only material part of his testimony thus excluded was as to the wife's silence in reference to the assault. There is nothing outside of the recitals in the motion for new trial, either in the bill of exceptions or the record, to show it was proposed to prove any other fact by him.

The motion was overruled and defendant excepted.

The remaining facts, so far as material, will be found in the opinion.

Gabriel Nash; J. B. Estes; Wier Boyd; Frank Haralson, for plaintiff in error.

Seaborn Reese, solicitor general, for the state.

Bleckley, Judge.

1. If to put the arm, though tenderly, about the neck of another man's wife, against her will, is not an assault and battery, what is it? Surely, the matrons of the land are not exposed to such an indignity at the pleasure of every libertine who, with no check from the law, may be rude and reckless enough to insult their virtue! If it be said that it is a bare trespass, and that redress may be had in a civil action for the tort, is there, in the whole law, an instance of trespass by wilfully touching the person of another, which is not, at the very least, an assault and battery, unless the trespasser is wanting in capacity to commit the crime? To be a trespass, the touching must be unlawful, and if unlawful, it amounts, in legal contemplation, to violence. The definition of an assault is, "an attempt to commit a violent injury *upon the person of another;" and a battery is, "the unlawful beating of another." Code, 4357, 4363. To beat, in a legal sense, is not merely to whip, wound, or hurt, but includes any unlawful imposition of the hand or arm. The slightest touching of another in anger is abattery. To touch a virtuous wife in the way of illicit love is a far greater outrage than to touch her in anger, and equally a breach of the peace. It is violence proceeding from lust, instead of violence proceeding from rage. It issues from the passion which, unrestrained, culminates in rape, instead of from the passion which culminates in homicide. Here, the act was done gravely and silently. No consent was asked or obtained; no explanation preceded or followed. That the woman\'s will did not concur is evident. She threw off the offending arm, and it was immediately replaced. If it were allowable to take a liberty of the sort once, here it was done twice. Her conduct was a warning not to proceed, and the warning was unheeded. The offensive act was repeated. The case bears no trace of jest or pleasantry. Both parties were apparently in profound earnest—the man in offering rudeness, and the woman in repelling it. No key to his behavior is furnished by...