Mcmath v. The State Of Ga.

• Decision Date: 31 July 1875
• Citation: 55 Ga. 304
• Parties: Charles McMath, plaintiff in error. v. The State of Georgia,defendant in error.
• Court: Georgia Supreme Court

55 Ga. 304

Charles McMath, plaintiff in error. v. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1875.)

Criminal law. Rape. Evidence. Infants. Indictment. Attorneys. Argument. Before Judge Wright. Dougherty Superior Court. April Term, 1875.

Reported in the decision.

R. N. Ely, for plaintiff in error.

B. B. Bower, solicitor-general, for the state.

Warner, Chief Justice.

The defendant was indicted for the offense of "rape, " and on the trial thereof the jury, under the charge of the court, found the defendant guilty of an "assault, with intent to commit a rape." The defendant made a motion for a new trial on the several grounds set forth in the record, which was overruled by the court, and the defendant excepted. The following evidence was offered on the part of the state:

Matilda Wells, sworn, says: Knows the prisoner; his name is Charles McMath; is the mother of the child that prisoner raped; knows of an injury committed on her child this year, in this county of Dougherty, directly after Christmas; the child's name is Dora Carter; the child is going on seven years old; does not know her exact age; one night, about dark, was cutting wood; asked the prisoner to cut some wood for her; he said he would; after he cut the wood, he asked *witness to let the children go out and get the chips; her daughter, Dora, went out and brought in the chips; he then asked if Dora could go down to Joiner's with him, to get ten cents worth of candy; witness gave her consent; on Dora's return, she told witness that prisoner had tried to have connection with her; she was crying on her return, and witness took her out on the front steps, asking her company to excuse her; first knocked prisoner out of the door; knocked him three times; then found that her clothes were bloody; after she told what prisoner had done, examined her and found her clothes bloody; this was after all were gone; the blood wason her drawers; it came out of her private parts between the legs; examined Dora and found that she was bloody; did not see anything that showed injury except the blood, which excited her; prisoner came back from Joiner\'s with Dora; after this, prisoner said he would pay her $5 00 if she would drop it; never heard prisoner say anything else about it; had put prisoner out of doors when Dora was examined by her; prisoner told her he would pay her the $5 00 for nothing; he denied, one night at supper, having anything to do with Dora, about two weeks before. This affair happened about dark; prisoner and Dora were gone about one hour; he never paid her anything, about this matter; witness told him to do as he pleased about paying her; does not know the day or month this act was done. Witness is a feme covert.

Louis Ford, sworn, says: Knows prisoner; his name is Charles McMath; knows Dora well; heard of the affair between prisoner and the little girl, for which prisoner is being tried. On the night, first saw the child come into her mother's house crying; the little girl did not say anything when her mother asked her what was the matter; at first the little girl said that prisoner had unbuttoned her drawers; she said this in presence of prisoner, who was sitting in the house; the mother asked what did prisoner unbotton her drawers for; prisoner said: "I never done it for nothing." Witness saw no appearance of violence about the girl; did not examine her. The mother did not take the child outside of the door, while *witness was there; prisoner did not say that he did not unbutton the child's drawers; witness, prisoner, and the mother, Dora, and another daughter of Dora's mother, were in the house at the time of their return from Joiner's.

Matilda Wells, recalled, says: "She saw blood on the drawers, and where it came from her privates was bloody.

The defendant introduced no evidence. The grounds of the motion for a new trial were as follows:

1st. Because the witness, Matilda Wells, was allowed to testify as to the age of Dora Carter.

2d. Because the same witness, being the principal witness for the state, and the mother of the child alleged to have been injured, was allowed to testify that defendant proposed to give her $5 00 to stop the prosecution against him, over the objection of prisoner's counsel, in both instances.

3d. In not allowing defendant's counsel to ask Matilda Wells if she had not agreed to drop the prosecution if defendant would pay her $5 00.

4th. In permitting the same witness to testify as to the statements of Dora Wells in regard to the injury, and that defendant committed the injury.

5th. In refusing the following requests to charge by prisoner's counsel: "If the bill of indictment charges the offense to have been committed on October 10th, 1875, he cannot be found guilty."

6th. "If it is alleged in the bill of indictment that the act was committed with force and violence against the said Dora Carter, it is necessary that this allegation be proved; and if the state has failed to prove this, the defendant is not guilty. In order to convict the defendant the jury must believe, from the...