McTyier v. State

• Decision Date: 21 November 1892
• Citation: 18 S.E. 140,91 Ga. 254
• Parties: McTYIER v. STATE.
• Court: Georgia Supreme Court

18 S.E. 140

91 Ga. 254

McTYIER v. STATE.

Supreme Court of Georgia

November 21, 1892

Syllabus by the Court.

1. On a trial for seduction alleged to have been accomplished by persuasion and promises of marriage, promises of marriage made and letters written by the accused to the woman after the seduction, but pending the marriage engagement, are admissible in evidence. So, too, is a promise made by him to her at the time of the intercourse, or prior thereto, that if she yielded to him that time he would not make such a request again.

2. It is not competent, on examination in chief, to impeach either chastity or credibility by evidence of what a third person said to the impeaching witness touching the character or conduct of the woman sought to be impeached; and, where counsel declared his purpose to be to establish general character in this way, it was not error for the court to exclude the evidence without having heard counsel state what he expected to show by the witness that the third person had said, notwithstanding such third person was a relative (the uncle) of the woman whose character was in question. General character cannot be proved by evidence of particular statements made by relatives.

3. On a trial for seduction, the woman seduced having testified as a witness in behalf of the state, and her chastity and credibility having been drawn in question, it was not error to charge the jury that a witness might be impeached "by proof of general bad character, or by proof of general bad character as to the subject-matter of inquiry," and that a witness "may be sustained, and his credit restored, by proof of general good character or by the proof of general character in respect to the matter or subject of inquiry;" and "whether a witness has been impeached by any of these modes is a question of fact for the jury." These propositions, applied to such a case, are correct in the abstract, and giving them in charge was not prejudicial to the accused, though the evidence was less comprehensive than the charge.

4. The testimony of an impeached witness should be disregarded by the jury unless sustained by circumstances or by other credible testimony.

5. On a trial for seduction, the legal definition of the phrase "a virtuous unmarried woman" is matter of law for the court, and not a question of fact for the jury. The presumption of the law is that a female alleged to have been seduced was virtuous, and that presumption remains until removed by the evidence. The jury should treat her as virtuous unless the evidence, direct or circumstantial should satisfy them that she had lost her virtue by having illicit intercourse. Repeating the engagement vow at the time of the sexual intercourse may imply persuasion.

6. It was not error for the court, in its charge, to caution the jury not to be influenced by public opinion, whether for or against the accused, and to state to them that they had nothing to do with the pleasure or displeasure of the public.

7. It was not error, as against the accused, to instruct the jury to consider the prisoner's statement in connection with the evidence, the instruction as to the statement being otherwise full, complete, and correct.

8. In charging on the prisoner's statement, it is not error for the court to say that the law "permits" it to go to the jury along with the evidence, this being literally and accurately true.

9. The court having permitted certain evidence to go to the jury not as constituting proof of seduction, it was not error so to state in the final charge.

10. A correct charge on reasonable doubts, followed by the phrase "I charge you, however, that in legal investigations mathematical certainty is not attainable," is not rendered, erroneous by the use of the word "however."

11. The verdict, being for the offense of seduction, is not vitiated by what the court may have charged touching the lesser offense of fornication.

12. On the facts disclosed in the record, the remark imputed to a juror as having been made to his fellow jurors while serving on the trial of a previous case was not cause either for declaring a mistrial or for granting a new trial.

13. Where there was no separation or misconduct of the jury, but one of them casually overheard something, such as, "We the jury, find the prisoner guilty," said by a bystander, one of a large crowd in the street along which the jury in a body, and in charge of a bailiff, were, with leave of the court, passing during a recess of the court on their way to dinner, there is no necessary presumption that the accused, whose case was then on trial, was injured. On the facts contained in the record the court was warranted in holding that the substantial conditions of a fair and impartial trial had not been violated; that the person who made the remark did not intend the jury to hear it, and was not aware that they were in hearing distance; that not more than one member of the jury did in fact hear it; and that none of them were influenced by it in their finding. Jurors cannot be heard to impeach their verdict. Affidavits having this object should not be received or read upon a motion for new trial.

14. The evidence warranted the verdict, and there was no error in denying a new trial.

Error from superior court, Sumter county; W. H. Fish, Judge.

W. E McTyier was convicted on an indictment for seduction, and brings error. Affirmed.

The woman having testified in behalf of the state, and her chastity and credit having been impeached, it was not error to charge that a witness might be impeached "by proof of general bad character, or by proof of general bad character as to the subject-matter of inquiry," and that a witness "may be sustained, and his credit restored, by proof of general good character or by the proof of general character in respect to the matter or subject of inquiry," and "whether a witness has been impeached by any of these modes is a question of fact for the jury," since these propositions are correct in the abstract, even though the evidence was less comprehensive than the charge.

The following is the official report:

Indictment charging W. E. McTyier with seduction of Miss Ida Jennings "by persuasions and promises of marriage." Verdict of guilty. Exception to denial of new trial. Besides the general grounds, the motion for new trial sets forth the following:

(1) Error in admitting the testimony of Miss Ida Jennings, over the objection of defendant's counsel, in relation to promises of marriage after the alleged seduction.

(2) Error in permitting Miss Ida Jennings to testify, over the objection of defendant's counsel, "that he told me, if I yielded to him that time, he would not ask me such a question any more,"--there being no charge in the indictment of "other false and fraudulent means;" and error in admitting a letter purporting to have been written by the defendant, after the alleged seduction, to Miss Ida Jennings.

(3) William Laney was introduced, as a witness by defendant, and he testified that he knew the defendant, but did not know Miss Jennings. Defendant's counsel asked: "Ever heard of her?" Answer. "Only through Mr. Johnny Jennings. In October or November I kept the track out on the Sam road. He came out there down to where I was working after they had arrested McTyier." Here the state's counsel objected to the witness stating what Mr. John Jennings told him. The court inquired: "How are the sayings of some one else admissible?" Defendant's counsel replied: "It is what people say about her character. That is how her character has been sought to be established by the state. What we expect to prove is what her own kinsman said." By the Court: "I don't care to hear what you expect to prove. I will hear from you as to the admissibility of the sayings of a third party. The rule, as I understand it, is this: That you can show character by general repute, but that you cannot show it, or the want of it, by specific acts. When a witness swears as to general character, then you can, on cross-examination, inquire into his knowledge by asking as to specific acts. I understand that you propose to show by this witness what some other person said." Counsel: "I have not stated that. I propose to prove her general character by means known to this witness and myself." The Court: "You have not stated that, but the witness started to tell what he had heard some one else say." Counsel: "I expect to prove certain things by this witness going to show her general character,--what her own kinsman thought to it." The Court: "I ask you now, by statements made by some other person to this witness?" Counsel: "I will tell your honor, if you want me to, what I propose to show by this witness." The Court: "The evidence is ruled out. I asked you what you proposed to prove, and you decline to state it." Except as above stated, the court did not refuse, nor did the defendant offer, to prove the character of Miss. Jennings for virtue. The motion for new trial alleges that the court erred in refusing to allow defendant to prove her general character for virtue, by showing her reputation among her own relatives; and also in making the statements above quoted, in presence of the...