McCalman v. State
| Decision Date | 21 December 1904 |
| Citation | 49 S.E. 609,121 Ga. 491 |
| Parties | McCALMAN v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The demurrer to the indictment was properly overruled.
2. Upon a trial under an indictment charging the accused with the offense of bastardy, evidence that he had previously been tried under an indictment charging him with the seduction of the mother of the bastard child, and found guilty of the offense of fornication, was irrelevant and inadmissible.
3. Where the magistrate who presided at the preliminary hearing of a bastardy proceeding signed entries made on the warrant to the effect that, after evidence heard, the accused was required to give the bastardy bond, in terms of the law, and that, having failed and refused to do so, he was recognized in a given sum to the superior court, such entries were admissible as original evidence on the subsequent trial of the accused under an indictment for bastardy founded upon such bastardy proceedings.
4. The court did not err in instructing the jury that the warrant and the entries thereon were in substantial compliance with the statute in such cases provided.
5. Testimony of a witness that the bastard child resembled the accused was inadmissible. (Candler, J., dissenting.)
6. Testimony of the mother of the child that after she became pregnant she sent word to the accused to come and marry her as he had agreed to do, and of her father that he carried such message to the accused, was irrelevant and inadmissible.
7. When, in a motion for a new trial, error is assigned upon the exclusion of evidence offered to impeach a witness by proof of contradictory statements previously made, it should appear from the motion itself that the proper foundation for the introduction of such evidence was laid.
F. E McCalman was convicted of crime, and brings error. Reversed.
Griffith & Weatherly, for plaintiff in error.
S Holderness, Sol., R. D. Jackson, James Beall, and H. A. Hall, Sol. Gen., for the State.
Felix E. McCalman was indicted for the offense of bastardy. The indictment, so far as material here, was as follows: "For that the said Felix E. McCalman on the 23d day of September, 1903, in the county aforesaid, being the father of a bastard child born to S.E. Chance, and upon a lawful warrant sued out in said case in said county before W. B. Chandler, a justice of the peace in and for said county, charging him, the said Felix E. McCalman, with the offense of bastardy, and upon the trial of said warrant before said W. B. Chandler, justice of the peace in said county, and having been required in terms of the law by said W. B. Chandler, justice of the peace aforesaid, to give a bond, with good and sufficient security, in the sum of seven hundred and fifty dollars, payable to S. J. Brown, ordinary of said county, to be used in the support, maintenance, and education of the child until it arrives at the age of fourteen years, and also the expense of lying in with said child, boarding, nursing, and maintenance while the mother is confined by reason thereof, did fail and refuse, contrary to the laws of said state, the good order, peace, and dignity thereof." Sarah E. Chance, the mother of the child, was the prosecutrix. The indictment was demurred to upon the following grounds: That it alleged no offense against the accused; did not allege when a bastard child was born to the prosecutrix; did not set out the age of the child, nor allege whether it was over or under the age of 14 years on September 23, 1903, or at the time when the indictment was found; did not allege that the accused was the father of a bastard child born to the prosecutrix, nor that the accused was the father of a bastard child at the time the indictment was found; did not allege that the accused was required to give bond in terms of the law, nor what or whose child the accused was required to give bond to support, etc.; did not allege that the child for whose support, etc., the bond was required, was a bastard; did not allege that the accused was required to give bond for the support, etc., "of any certain specified child"; did not allege for whose or what child the bond for lying-in, etc., expenses was required, nor who the mother was that was confined, or was to be confined; and because the indictment alleged that the bond was required for lying-in expenses, though it appeared that the child was already born; and because it alleged "'a lawful warrant sued out in said case,' without alleging what case [was] referred to." The demurrer was overruled, and the accused excepted pendente lite. The trial resulted in a verdict of guilty. The accused moved for a new trial, which was refused, and he excepted; assigning error upon the overruling of such motion, and also upon his exceptions pendente lite.
1. There was no merit in any of the grounds of the demurrer. We deem it unnecessary to deal specifically with any of these grounds. Suffice it to say that the indictment not only stated the offense charged in the terms and language of the Penal Code, and so plainly that the nature of the offense could be easily understood by the jury, but set out all the averments of fact essential to constitute the offense with sufficient particularity to enable the accused to make his defense.
2. The indictment for bastardy was found at the October term, 1903, of Carroll superior court. It charged that the accused refused to give the bond required by the statute, September 23, 1903, and that he was then the father of the bastard child. It did not allege when the child was begotten. The court, over the objection of the accused, permitted the state to put in evidence an indictment, found at the April term, 1901, of said court, charging the accused with having seduced the prosecutrix on July 22, 1900, with a verdict thereon, rendered in the superior court of the county, finding him guilty of fornication. It does not appear from the record when the verdict was rendered. The objection urged to the admissibility of this evidence was that it was irrelevant and immaterial. The objection was well taken, and the evidence should have been excluded. The verdict that the accused was guilty of the offense of fornication with the prosecutrix fixed no particular time when the offense was committed, as the jury that tried that case might have found the accused guilty of fornication upon evidence showing that he committed the offense with the prosecutrix at any time within the statute of limitations prior to the finding of that indictment. And there was nothing to show that the child referred to in the bastardy proceedings was the result of the fornication for which the accused was found guilty. This being true, such indictment and the verdict thereon could throw no light whatever upon the issues in the bastardy case. In Davis v. State, 58 Ga. 170, it was held: "That the defendant was acquitted on a former trial for fornication and adultery with the mother of the alleged bastard is not a good plea of autrefois acquit to an indictment for bastardy." If in such a case the accused could not put in a verdict of acquittal for the purpose of showing that he had not had sexual intercourse with the mother of the alleged bastard, then, of course, the state should not be allowed to put in a verdict of guilty, under such circumstances, to show that the accused had had sexual intercourse with the mother.
3. The court admitted in evidence, over the objection of the accused, a warrant sworn out by the prosecutrix, charging him with bastardy, together with the entries thereon, signed by the magistrate before whom the preliminary investigation was had. These entries were as follows: "After hearing the evidence in the above-stated case, the said Felix E. McCalman is hereby required to give a bond, with good and sufficient security, in the sum of $750, payable to S. J. Brown ordinary of said county, to be used in the support, maintenance, and education of the child until it arrives at the age of fourteen years, and also the expense of lying in with said child, boarding, nursing, and maintenance while the mother is confined by reason thereof." "The said Felix E. McCalman refusing and...
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