Powers v. The State Of Ga.

• Decision Date: 31 July 1871
• Citation: 44 Ga. 209
• Parties: ASBURY H. POWERS, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.
• Court: Georgia Supreme Court

44 Ga. 209

ASBURY H. POWERS, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1871.)

Criminal Law. Before Judge Hopkins. DeKalb Superior Court. April Term, 1871.

Powers, alone, was charged with "incestuous fornication, " in that, on the, etc., being an unmarried man, he had carnal *knowledge of Amanda Powers, an unmarried female, who was his sister. Upon arrangement, he demurred to the indictment upon the ground that said offense is a joint offense, and no provision was made by law for a separate indictment therefor. The demurrer was overruled. On the trial Amanda Powers testified subsantially as follows: She lived now with her brother-in-law, Reeves, but in 1869lived with her brother, the defendant. In December 1868, defendant had carnal knowledge of her against her will, and continued to have till March 1869, when she left his house. She had a child, the fruit of this intercourse, in November 1869: it is alive. She made certain contradictory statements as to dates, etc. There was an attempt to show an improper intimacy between her and one Burdett, but she denied it. She said she did not tell any one about the matter till she moved to Reeves\'. She denied having been willing to settle for $1,000; said Reeves was not trying to get money for her; she did send Ramsey to defendant; and he has not been representing her to get money from defendant. She said she sued her brother after she was twenty-one years old, in her own name; that she is now twenty-four years old. She denied having told Ann Corley, just before she left for Reeves\' that she had never had criminal intercourse with defendant, and that Burdett got it up to disgrace her; and she denied telling her and Miss Gardner so after that; she said she never told anything of the kind. She said she had never gotten any part of her father\'s estate, that defendant was her guardian, and as such she sued him; that is the suit pending.

Her uncle, Burdett, father of said Burdett, testified that in November 1868, about daylight, he was passing defendant's and through a crack of the house saw him over Amanda, with his pants off, trying to have carnal knowledge of her, heard her insist that he should not, and him say he would, and witness passed on, and did not mention it to any one, neither to his wife nor any member of the family, nor to any one till the Spring of 1870. He admitted that he and *defendant had had a quarrel and had not spoken to each other for a long time. The State proved that she and defendant were unmarried, and closed. Mrs. Corley and Mrs. Gardner testified that Amanda did tell them at said time that her brother had never hinted such a thing as carnal intercourse with her, and they testified that they would not believe her on oath, because of her bad character. And Mrs. Gardner testified that from the general character of the witness, Burdett, she would not believe him on oath. Three other witnesses, akin to defendant, testified that Burdett's and Amanda's characters were so bad that they were unworthy of belief on oath. Defendant's counsel offered in evidence an action by Amanda, by Reeves as her next friend, against defendant for trespass in violently having carnal knowledge of her, begun in September 1870, with a garnishment founded upon it, in which Ramsey stood Reeves' security for costs and damages. The Court permitted so much of it to be read as showed when it was begun.

In rebuttal, four or five witnesses sustained Burdett as a man of such character as that his testimony should be believed, and several of them so sustained Amanda. Defendant stated that the charge was false, that he had whipped Amanda because she would go to Burdett's against his orders, and this raised them against him. His counsel requested the Court to charge as follows: "In criminal cases, a preponderance of testimony is not sufficient to authorize a verdict of guilty. Preponderance of testimony is sufficient in a civil case, to produce mental conviction, but in all criminal cases, a greater strength of mental conviction is necessary to justify a verdict of guilty. In this case, if you have a reasonable doubt growing out of the evidence, as to the prisoner's guilt, you are, under the law, bound to give him the benefit of such doubt, and return a verdict of 'not guilty.' You are not authorized to return a verdict of guilty without plain and manifest proof of the prisoner's guilt. In this case, entrusted as you are with the administration of public justice, *on the one hand, and the liberty and honor of the prisoner, on the other, your duty calls on you, before you pronounce a verdict of condemnation, to ask yourselves whether you are satisfied, beyond a reasonable doubt, that the prisoner is guilty of the offense alleged against him in the indictment. In criminal cases, the guilt of the accused should be fully proved. Neither a preponderance of testimony, nor any weight of preponderant evidence, is sufficient, unless it generates full belief of the prisoner\'s guilt, to the exclusion of all reasonable doubt. If such reasonable doubt is created, it is the duty of the jury to acquit. In criminal cases, charging the prisoner with a felony, the testimony of an accomplice is not sufficient to authorize a verdict of guilt. Before the jury can convict upon the testimony of an accomplice, there must be other testimony in corroboration of the facts testified to by the accomplice. In all felonies where the only witness is an accomplice, unless such witness is corroborated by circumstances, the jury cannot find the accused guilty; there must either be another witness to the same facts, or corroborating circumstances. Where the only witness in a criminal case testifies falsely to a leading fact, respecting which there could be no mistake or misapprehension, such witness being corroborated by another witness or circumstances as to immaterial matter, will not restore the witness to credit, or authorize a conviction upon the evidence of that single witness. If a witness swear wilfully or knowingly false, even to a collateral fact, such testimony ought to be rejected entirely, unless it be so corroborated by circumstances or other unimpeached evidence, as to be irresistible."

The Court charged the jury as follows: "The defendant begins the trial with a presumption of innocence in his favor, and that presumption continues until it is removed by proof. The proof must satisfy you, beyond a reasonable...