Innis v. The State Of Ga.
| Citation | 42 Ga. 474 |
| Parties | S. B. INNIS, plaintiff in error. v. THE STATE OF GEORGIA,defendant in error. |
| Decision Date | 31 January 1871 |
| Court | Supreme Court of Georgia |
Rape. Evidence. Charge of Court, etc. Before Judge Hopkins. Fulton Superior Court. October Term, 1870.
The details of this case are sufficiently set forth ill the parts of the proceedings below and the opinions, for an understanding of the points decided.
When the evidence was concluded, the Court charged the jury as follows:
Gentlemen of the Jury: You begin this trial with a presumption of innocence in favor of the defendant. The law presumes him to be innocent, and that presumption continues until the State satisfies you, by proof beyond a reasonable doubt, of the defendant's guilt. The State makes the charge and must prove it. The law allows the prisoner to make to the Court and jury such statement in the case, not under oath, as he may deem proper in his defense. That statement is to have such force only as you may think right to give it. "Rape is the carnal knowledge of a female forcibly and against her will." The defendant must have had carnal knowledge of the female, Mary Meyer, that is, he must have inserted his private part into her person in the way of sexual intercourse. The extent of the penetration is unimportant, so that his part was inserted into hers. This knowledge must have been forcibly and against her will. If he used force, *and it was accomplished against her will, the crime was complete. Witnesses are to be believed, unless they be impeached in some of the modes which the law declares sufficient to throw suspicion on their testimony.
If a witness swears falsely, wilfully and knowingly, he is not entitled to credit in any respect, and is not to be believed, unless the remainder of his testimony is corroborated by circumstances, or supported by other witnesses. It is a rule that a witness swearing positively to a fact is to be believed in preference to many who swear negatively to the same fact, that is, that they did not see or hear it. If the existence of a fact be sworn to, positively, by one credible witness, and many other witnesses, who were in a situation to see or hear it, testify that they did not see or hear it, or know that it transpired, you are bound to regard the testimony given by the witnees who swears positively, in preference to those who swear negatively. To illustrate this and fix the principle on your minds, if you, the jury, were in a room where there was a clock, and, after coming out, a question should be raised as to whether the clock struck a certain hour while you had been there, if three were to swear that they heard it, and the other nine that they did not hear it, the three must be believed rather than the nine. But if you all had gone there for the purpose of ascertaining whether the clock would strike at a certain hour, and all equally attentive, then the testimony of all would be positive. To illustrate further: if, on the trial of a criminal case, the prosecutor should swear that the defendant had a pistol about his person, and that he saw it during the quarrel between himself and the defendant, and a witness for the defense should swear that he was present at the quarrel, saw no pistol, looked attentively and closely to see if he could see anything of the sort, and must have seen it if defendant had had it about his person at the time, the positive testimony of the prosecutor would prevailover the negative testimony of the other witness. If there is an *apparent conflict of testimony, you must so reconcile it as to make all speak the truth, and not impute perjury to any, if you can possibly do so; but if there is an irreconcilable conflict, and the witnesses are equally credible, you will give credit to those who had the best opportunity of knowing the facts, and the least motive for misstating them. The Court permitted the defendant to introduce testimony tending to show improper intimacy, and an act of bastardy between the witness, Mary Meyer, and one Croft. After mature reflection I now instruct you that the testimony as to that intimacy with Croft and that act of bastardy has no legal weight or significance in this case, and will not be considered by you to the credit or discredit of that witness. That is not a mode prescribed by law for impeaching her. If the testimony excludes from your minds all reasonable doubt of the defendant\'s guilt, you will find him guilty. Moral and reasonable certainty is all that can be expected in legal investigation, but you must be satisfied of his guilt "beyond a reasonable doubt. If the mind is wavering, unsettled, cannot be satisfied from the evidence whether the crime was committed at all, that must acquit. But the doubt must grow out of the testimony. You cannot create for yourselves a doubt and act upon it. Francis may suggest themselves to sceptical minds to create unsubstantially doubt, or that witnesses may not remember accurately, may be mistaken, may swear falsely, etc., but such things are not allowable. To acquit upon light, trivial and fanciful suppositions and remote conjectures is a virtual disregard of the juror\'s oath.
If you find the defendant guilty, you will say so in your verdict. If you find him guilty you may, if you see proper to do so, recommend him to mercy. If you find him guilty and recommend to mercy, the punishment would be different, and you will be particular to render your verdict thus: We, the jury, find the defendant guilty, and recommend to mercy. If you find him guilty, you willsimply say so.
*The jury returned a verdict of guilty, recommending the defendant to the mercy of the Court. Whereupon defendant, by his counsel, moved for a new trial upon the following grounds to-wit:
1st. Because the Court erred in not allowing defendant's counsel to interrogate the witness, Thomas Spencer, Justice of the Peace, as to whether A. E. Cloud, witness for the defendant, had sworn on the committing trial before him, "that defendant, on the evening upon which the rape is alleged to have been committed, asked him if he had seen or heard anything that would show that a rape had been committed in the adjoining room to that in which witness was, this evidence being offered not for the purpose of impeaching the witness, Cloud, but for the purpose of sustaining the testimony of the witness, Hughes, who was sought to be impeached upon the ground that he had sworn to additional facts to what had been testified to by him on the committing trial.
2d. Because the Court erred in allowing the State, over the objections of defendant's counsel, to cause the witness. Hughes, to repeat a dialogue from the play of Punch and Judy, which he stated he had been committing to memory at the time that certain facts transpired, about which he had been testifying.
3d. Because the Court erred in refusing to allow defendant to prove by the witness, Gresham, that the prosecutrix had offered to settle this case in consideration of the payment of a certain sum of money.
4th. Because the Court erred in its charge to the jury upon the subject of positive and negative testimony, as applicable to the facts of this case, as aforesaid in said charge.
5th. Because the Court, in its charge to the jury, excluded fromtheir consideration all evidence tending to show that the witness, Mary Meyer, had had intercourse with one Croft, *and had been the mother of an illegitimate child prior to the alleged rape, after having admitted said evidence, and having allowed counsel to comment upon it in argument to the jury. For a proper understanding of this ground, it is necessary to state that when the witness, Mary Meyer, was being cross-examined as to this fact, objection was made on the part of the state, which objection was overruled without argument. This action on the part of the Court convinced the defendant that this evidence would be considered by the jury under the charge, and the defense was conducted under this impression.
6th. Because the evidence as to the witness, Mary Meyer, having had intercourse with one Croft, and having been the mother of a bastard child by him, was admissible and proper to be considered by the jury, and the Court erred in charging to the contrary.
7th. Because the charge of the Court, as a whole, was calculated to exclude from the jury the consideration of defendant's evidence.
8th. Because the Court erred in the portion of its charge as to doubts.
9th. Because the Court erred in ruling, when defendant's counsel opened the case to the jury, that law must be read to the Court and that the jury must take the law as given them in charge by the Court.
10th. Because the verdict was contrary to law, the evidence, etc.
11th. Because of the newly discovered evidence of J. J. Meador.
12th. Because the Court erred in charging the jury that the evidence tending to show that the witness, Mary Meyer, had had improper intercourse with one Croft, and had an illegitimate child, was not to be considered by the jury after having admitted the same byan express ruling, for the defendant would otherwise have proven by one Dr. Rosenberg *that the witness, Mary Meyer, was suffering from gonorrhea a short time before the rape is alleged to have been committed, which evidence, under the first ruling of the Court, was considered unnecessary.
The Court refused a new trial, and error is assigned on said grounds.
L J. Gartrell, Harry Jackson, for plaintiff in error.
E. P. Howell, Solicitor General, for the State.
Without going into the mass of testimony in this case, we may briefly remark that the defendant was indicted for the crime of rape, and was brought to trial in the Court...
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