Kennedy v. State
| Decision Date | 11 April 1911 |
| Docket Number | 3,206. |
| Citation | 70 S.E. 986,9 Ga.App. 219 |
| Parties | KENNEDY v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The offense charged being bastardy, the court properly refused to allow the prosecutrix to answer a question as to whether she had testified before the justice of the peace that the child was begotten by the defendant in committing a rape upon her. If the child was begotten by the defendant, and was a bastard likely to be chargeable to the county, the circumstances under which it was begotten were immaterial. Impeachment by contradictory statements must be by previous statements as to material matters. The witness detailed the circumstances under which the alleged intercourse was had, and these circumstances indicated that she did not fully consent; but whether she had denominated the offense as rape, in testifying before the justice of the peace, was of no consequence.
The court correctly excluded testimony sought to be adduced to the effect that one other than the defendant had asserted that he was the father of the bastard child. This testimony was clearly hearsay.
The question of the probability of the child becoming chargeable to the county is not involved in the trial of an indictment for bastardy. Two questions are involved: Whether the defendant is the father of the bastard; and whether he refused to give bond in terms of the law--that is, in the manner pointed out by law --when called on to do so.
The alleged newly discovered evidence, tending to show that the defendant was not in the county of Tattnall at the time that the intercourse between himself and the mother of the bastard child was alleged to have taken place, was not sufficient to require a new trial upon the ground of newly discovered testimony. The charge in the indictment that the child was begotten on the 9th of April, 1909 (irrespective of the fact that the prosecutrix had testified that the child was begotten on the 5th), put the defendant on notice sufficient to have required him to produce any evidence within his knowledge as to his whereabouts at any time within the probable period of gestation.
The evidence authorized the verdict, and there was no error in refusing a new trial.
(Additional Syllabus by Editorial Staff.)
It is not necessary for prosecutrix, in a prosecution for bastardy to be corroborated; but her credibility, like that of any other witness, is for the jury.
Error from City Court of Reidsville; C. L. Morgan, Judge.
Alex Kennedy was convicted of bastardy, and he brings error. Affirmed.
Way & Burkhalter, for plaintiff in error.
R. E De Loach, Sol., and H. H. Elders, for the State.
The defendant was convicted of the offense of bastardy, and excepts to the judgment overruling his motion for new trial. According to the evidence of the prosecutrix, the defendant who was her cousin, came to her father's house on the 9th of April, 1909, while her father and mother were at court at Reidsville, and, while she was engaged in her housework, caught hold of her, threw her down, and had sexual intercourse with her. She testified that no other man had carnal knowledge of her person, and that the defendant was, of course, the father of the child. The mother and father of the prosecutrix were both introduced, and each testified that they were informed of the occurrence by the prosecutrix, shortly after their return home from court. The state also introduced affidavits signed by the prosecutrix, and dated in October, 1909, charging the defendant with being the father of the bastard child then about to be born, and introduced the warrant issued thereon; also the judgment of the justice of the peace requiring the defendant to give bond for the support and maintenance of the child in terms of the law, and the judgment holding the defendant for his appearance at the city court of Reidsville to answer the charge of bastardy, and reciting that the defendant had failed and refused to give the bond required of him by the said justice. This judgment was dated November 13, 1909, and signed by J. U. Rowe, J. P. This was the substance of the state's case.
On the part of the defendant there was testimony of a brother of the defendant that he saw the prosecutrix in the act of sexual intercourse with one Frank Small some time during the month of April, prior to the birth of the child the following January, and there was also testimony that an effort was made to procure a marriage license authorizing the marriage of Frank Small and the prosecutrix, and other testimony indicating improper intimacy between her and Small. The prosecutrix, however, denied that she had ever been intimate with Frank Small, and testimony was introduced to the effect that Small was already married; and her mother testified that she (the prosecutrix) never went anywhere with Small, and that Small did not visit her house. The evidence authorized the jury to indulge a doubt as to whether Small was not the father of the child, if they believed the testimony of the defendant's brother as to sexual intercourse between the prosecutrix and Small; but the jury evidently discredited this testimony, and preferred the sworn statement of the prosecutrix that she had never been intimate with Small, and that no one had ever carnally known her person except the defendant, and for this reason it cannot be said that the verdict was contrary to the evidence.
1. In the first ground of the amended motion for a new trial, error is assigned upon the court's refusal to allow counsel for the defendant to ask the prosecuting witness, Mamie Kennedy whether she had sworn at the preliminary hearing before the justice of the peace that the child was begotten by the defendant in committing a rape upon her. We think the court properly refused to allow the question. It is stated that the attention of the witness was specifically called to the time, place, and circumstance of her previous statement; and it is insisted that the testimony was admissible for the purpose of impeachment, if for no other reason. We cannot concur in this view. There is nothing in the testimony of the prosecutrix in relation to the circumstances under which the sexual intercourse with the defendant was had, as appears in the record in the present case, which would indicate that the female invited and consented to the intercourse. According to her testimony, she was alone in her father's farmhouse, engaged in her household duties, and her father and mother were at Reidsville, at court, when the defendant slipped in, and threw her down, and proceeded to have sexual intercourse with her. According to her testimony, the defendant did not ask her consent, and nothing was said by either of them. The record does not inform us whether the house in which was this 17 year old girl was remote from other residences or not. It may be that it was the only dwelling house within a considerable distance, in a sparsely settled neighborhood. It is true that she does...
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