Keller v. State

• Decision Date: 10 August 1898
• Citation: 31 S.E. 92,102 Ga. 506
• Parties: KELLER v. STATE.
• Court: Georgia Supreme Court

31 S.E. 92

102 Ga. 506

KELLER v. STATE.

Supreme Court of Georgia

August 10, 1898

Syllabus by the Court.

1. Though, in the trial of an indictment for seduction, the accused requested the sequestration of the state's witnesses, it was not an abuse of discretion to allow the father and mother of the woman alleged to have been seduced and who was the prosecutrix in the case, to remain in the court room, and testify as witnesses, the record disclosing no reason for concluding that so doing prejudicially affected the accused, and it also appearing that the case turned mainly upon the testimony of the prosecutrix herself.

(a) The grounds of the motion for a new trial filed in the present case, alleging improper communications between the parents and the daughter by means of signs or signals while the testimony was being elicited, were not only not verified by the judge, but his certificate in effect negatives the occurrence of any such misconduct.

2. There was no error in refusing to permit counsel, in examining a witness, to ask questions, the answers to which would apparently have been irrelevant to the issue on trial when the purpose for which the questions were asked was not disclosed to the court, though the counsel asking the questions was requested to do so by the judge. This is true even though it may have subsequently appeared that the answers to these questions might, in connection with other evidence, have been admissible and material.

3. There being in the trial of an indictment for seduction evidence relating to an offer of marriage, either bona fide or pretended, alleged to have been made by the accused to the woman after the institution of the prosecution, and the record disclosing that counsel for the accused in his concluding argument "was discussing the legal effect of the alleged offer of marriage," this court cannot, in the absence of further light, undertake to say that the trial judge erred in inquiring of the counsel whether "the offer of marriage was still open"; the judge certifying that this question was asked "to learn from counsel his position in the case."

4. The victim of a seduction is not an "accomplice" to the offense committed, in the sense in which the word just quoted is used in section 991 of the Penal Code, requiring the testimony of at least two witnesses to convict of a felony or corroborating circumstances, "where the only witness is an accomplice."

5. In a trial for seduction it is proper for the jury to take into consideration any evidence tending to show that the woman was of a lewd disposition or lascivious nature, this evidence being material in determining the question whether she was or was not in fact virtuous at the time of the alleged seduction, and, if so, in deciding whether she was really seduced by persuasion and promises of marriage, or yielded her virtue because of wanton and lustful desires.

(a) There was, however, in the present case, no error in refusing to give in charge to the jury a request substantially embodying the law as above stated, when there was no evidence upon which to base the same.

6. It is competent, in the trial of an indictment for seduction, for the state to prove that more than one act of sexual intercourse had taken place between the accused and the woman alleged to have been seduced, and that upon each occasion after the first the accused continued to make promises of marriage. In drawing out such testimony it is within the discretion of the court to allow the woman to be asked leading questions.

7. It is not competent, in such a trial, for the accused to prove acts of sexual intercourse between the woman and any person or persons other than himself, occurring after the time when the alleged seduction took place.

8. A woman who has never been married, and who has never had sexual intercourse, is in law virtuous, in the sense that she may be the victim of seduction; but if she yields to a man, not because of persuasion and promises of marriage, or by reason of other false and fraudulent means, but because she is lustful, wanton, and desirous of the intercourse in order to gratify her own passions, she is not seduced. A woman of the character just indicated may nevertheless be seduced if, notwithstanding her passionate nature, she keeps her chastity, and surrenders it because of persuasion and promises of marriage, which, in connection with her love for and confidence in the man, overcome her virtue.

9. In passing upon the statement of the accused, the jury may consider whether or not it is consistent and true, and in determining what weight should be given to it may also take into consideration the testimony of the witnesses sworn in the case, and test the statement in the light thereof.

10. The ground of the motion for a new trial predicated upon alleged newly-discovered evidence presents no cause for setting aside the verdict, and does not commend itself to favorable consideration. When all the affidavits pro and con filed in connection with this ground are considered, no reason is afforded for believing that at another hearing the accused would be able to produce any credible evidence tending to show that the prosecutrix was unchaste at any time prior to the alleged seduction.

11. The numerous grounds of the motion for a new trial not specifically covered by the rulings above announced disclose no cause for reversing the judgment.

Error from superior court, Chatham county.

Francis B. Keller was convicted of seduction, and he brings error. Affirmed.

Garrard, Meldrim & Newman, for plaintiff in error.

W. W. Osborne, Sol. Gen., for the State.

FISH J.

In the case of Johnson v. State, 14 Ga. 62, this court stated the rule regarding the sequestration of witnesses to be that, while the state, before the examination commences "may demand that the witnesses should retire, in order to each being questioned in the absence of the others," the court was not bound, at the instance of the accused, to take any action in the premises, though a request on his part that an order looking to this end be passed might very properly be granted "as matter of indulgence, and not of right." Since the adoption of our Code, a much more equitable practice has been of force, whereby the accused is put upon an equal footing with the state in this respect, and the court is enjoined to effect the object of the rule so "far as practicable and convenient." Pen. Code, § 1017; Turbaville v. State, 58 Ga. 545. As formerly, however, "it is in a great degree discretionary with the presiding judge whether he will allow some" of the witnesses to remain in the court room to assist in the conduct of the case, when he is requested so to do by one of the parties. Carson v. State, 80 Ga. 170, 5 S.E. 295; Dale v. State, 88 Ga. 557, 15 S.E. 287; Betts v. State, 66 Ga. 508; May v. State, 94 Ga. 76, 20 S.E. 251; Hinkle v. State, 94 Ga. 596, 21 S.E. 595; Thomas v. State, 27 Ga. 287, 296. Certainly, in the present case, there was no abuse of discretion in according to the request of the solicitor general that the prosecutrix might be permitted to remain in the court room to assist him in the prosecution. And, even though it may not have been likewise proper to also allow her father and mother to be present during the examination of the witnesses, it is equally certain that the error (if any) thus committed was one unattended with any injury to the accused. The record discloses that the case turned mainly upon the testimony of the prosecutrix herself, and that of the father and mother bore only indirectly upon the controlling questions at issue, and was of no great materiality. We therefore think it far from reasonable to assume that they were influenced in testifying as they did by what fell from the lips of other witnesses. The accused introduced in his behalf no evidence whatsoever, and accordingly no conflict as to even minor matters resulted, as might have been the case had these two witnesses been introduced in rebuttal to evidence elicited from witnesses testifying in his favor. Indeed, the record before us fails utterly to present any reason for concluding that the action of the court of which complaint is made in any way operated to his prejudice. It was insisted in the argument here that, although it may not have been improper, in the first instance, for the court to allow the prosecutrix and her father and mother to remain in the court room, it was manifest error to permit them to do so after counsel for the accused had called the court's attention to "signs" made by the former to her father while he was on the stand, and to similar "signs" made by the mother to the prosecutrix while the latter was testifying. It was also urged that the court committed error in not thereupon promptly declaring a mistrial. An inspection of the record shows, however, that the several grounds of the motion for a new trial setting forth the complaint of the accused concerning this alleged misconduct on the part of the prosecutrix and her mother cannot properly be considered by this court, as the same are not verified. The trial judge, in this connection, certifies that he "was looking directly at the parties in both instances, and saw no signs made"; yet, when attention was directed by counsel to this alleged improper conduct, "declared with positiveness that anything of the kind was wrong, and must not be done. There was no request that a mistrial be declared." If counsel was satisfied that the prosecutrix and her parents were guilty of misconduct calculated to prejudice the accused, notwithstanding the court had failed to observe the same, the proper course to pursue would have been to request the court to then and there investigate into the truth of the matter, and, if the...