Plummer v. State

• Decision Date: 14 June 1921
• Docket Number: 12379.
• Citation: 108 S.E. 128,27 Ga.App. 185
• Parties: PLUMMER v. STATE.
• Court: Georgia Court of Appeals

108 S.E. 128

27 Ga.App. 185

PLUMMER v. STATE.

No. 12379.

Court of Appeals of Georgia, First Division

June 14, 1921

Rehearing Denied June 30, 1921.

Syllabus by the Court.

The defendant's conviction not depending wholly upon circumstantial evidence, the court did not err, in the absence of an appropriate written request, in failing to instruct the jury upon the law of circumstantial evidence.

There is no merit in those special grounds of the motion for a new trial that assigned error because the judge, after the verdict had been returned and before passing sentence on the defendant, stated from the bench that he thought the verdict was "eminently correct." Nor did such expression disqualify the judge from passing upon the defendant's motion for a new trial.

The remaining special grounds of the motion for a new trial are without substantial merit.

The defendant was convicted of the offense of adultery and fornication. While the evidence did not demand a finding that she was a married woman at the time of the commission of the offense charged, it was ample to authorize that finding. Such a fact may be shown, either directly or circumstantially. "The fact of the marriage may be at least prima facie shown by any of the following methods: By proof of general repute in family (Civil Code 1910, § 5764); by proof of general reputation in the community (Drawdy v Hesters, 130 Ga. 161[[1], 60 S.E. 451, 15 L.R.A. [ N S.] 190; Clark v. Cassity, 62 Ga. 407; Wood v State, 62 Ga. 406); by proof of the fact that the man or the woman, as the case may be, lives together with a person of the opposite sex, as his or her spouse, with general recognition in the community of their being married to each other (Clark v. Cassidy, supra)." Miller v. State, 9 Ga.App. 827, 72 S.E. 279.

The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Error from City Court of Dublin; S.W. Sturgis, Judge.

Georgia Plummer was convicted of an offense, and she brings error. Affirmed.

S. P New, of Dublin, for plaintiff in error.

William Brunson, of Dublin, for defendant in error.

BROYLES, C.J.

Judgment affirmed.

LUKE and BLOODWORTH, JJ., concur.

On Motion for Rehearing.

BROYLES C.J.

The plaintiff in error makes a motion for a rehearing of this case upon the ground that this court inadvertently overlooked the twelfth ground of the amendment to the motion for a new trial, and the decision in Lucas v. State, 110 Ga. 756, 36 S.E. 87. That ground of the motion was included in the third division of the decision of this court, which was as follows:

"3. The remaining special grounds of the motion for a new trial are without substantial merit."

The twelfth ground of the motion complained that the court charged that "all confessions should be scanned with care and should be received with great caution." There were several exceptions to this charge, but the only one argued by counsel for the plaintiff in error, in his motion for a rehearing, is that the court erred in not charging that an uncorroborated confession was not of itself sufficient in law to warrant a conviction. We agree with counsel that the court should have so charged; but, under all the particular facts of the case, we do not think this error requires a new trial. While in Lucas v. State, supra, the broad and sweeping statement is made, that such a charge "is an essential and vital part of the law as to confessions, and without it no charge on this subject can be fair and complete," the court further on in its opinion says that--

"The evidence relied on by the state as corroborative of this alleged confession was by no means strong, and it is

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