Steed v. State

• Decision Date: 05 November 1949
• Docket Number: 32480.
• Citation: 56 S.E.2d 171,80 Ga.App. 360
• Parties: STEED v. STATE.
• Court: Georgia Court of Appeals

56 S.E.2d 171

80 Ga.App. 360

STEED v. STATE.

No. 32480.

Court of Appeals of Georgia, Division No. 2.

November 5, 1949

Syllabus by the Court.

1. So far as the general grounds are concerned, the evidence fails to sustain the verdict beyond a reasonable doubt.

2. The judgment is reversed for the reasons given in the body of the opinion.

This is a bastardy proceeding instituted by Marjorie Coleman, the mother of the alleged bastard child. In her affidavit, which is the foundation of the proceeding, she accuses the defendant, W. W. Steed, with the offense of bastardy for that he did on December 2, 1947, have intercourse with her from which relation she became pregnant with a child. The accusation based on the affidavit alleges that the date of the intercourse was December 2, 1947. The defendant on said accusation was found guilty in the Criminal Court of Fulton County. The defendant made application to the Superior Court of Fulton County for a writ of certiorari. On a hearing on the writ of certiorari the same was dismissed and the judgment of the Criminal Court of Fulton County was affirmed. The defendant assigns error on that judgment here. The specifications of error in the petition for certiorari are '(1) Contrary to law; (2) Without evidence to support the same; (3) Are contrary to the principles of justice and equity; (4) Because the evidence did not exclude every other reasonable hypothesis save that of the guilt of the defendant; (5) Because the State failed to show by competent evidence that the child was not a legitimate child; (6) Because the State failed to show by competent evidence that the child was a bastard; (7) Because the court erred in ruling that the month of October would not be within the period of gestation the same being a question to be determined by the jury; (8) Because the court erred in confining the defense to questions of intercourse by the prosecutrix with men other than the defendant to the months of October and November; (9) Because the State failed to introduce evidence of the period of gestation; (10) Because the State failed to prove the period of gestation of the alleged bastard; (11) Because the Court erred in failing to declare a mistrial on motion of counsel for the defendant to the improper and prejudicial argument of the assistant solicitor in his argument to the jury; (12) Because there was no direct evidence against the defendant and the court failed to charge on circumstantial evidence (13) Because the only evidence against the defendant was circumstantial, and the court failed to charge on circumstantial evidence; (14) Because the court failed to charge the jury that the evidence must exclude every other reasonable hypothesis except that of the guilt of the defendant; (15) Because in the recharge to the jury, the court did state and express an opinion that the child was illegitimate, which was a question to be determined by the jury; (16) Because the court erred in sustaining the objection of the State to the question by the defense on the cross-examination of the State's witness, the prosecutrix, Marjorie Coleman, to-wit: 'Q. Did you ever live with James Moseley as husband and wife?' (17) Because the court in its charge to the jury did express an opinion that the child in question was a bastard child, and further did charge the jury that this child was a bastard, which was a question of fact that should have been left to the jury for determination.'

The State introduced one witness only and that was the prosecutrix Majorie Coleman. She testified materially in substance that she was at the time of the trial eighteen years old; that she met the defendant while they were both working at Crawford Long Hospital; that on the last occasion she had several intercourses with him at the house of the defendant's friend; that she had sexual intercourse with the defendant that one time only; that 'I don't remember the exact date it was, but it was in November of 1947. It was the first part of the month,--no, it was about the middle of the month, about the 8th or 9th. * * * I did not have sexual intercourse with him on any other occasion but that one time.' The prosecutrix further stated that she became pregnant from that occasion; that she saw the defendant on December 2, 1947 and talked with him about the baby, the alleged product of that one intercourse. The defendant stated to the prosecutrix that 'he heard I was pregnant and he wanted to know who was the father.' The prosecutrix replied: 'You guessed it [meaning that she was pregnant].' The defendant then said: 'It couldn't be mine because I know if it was you would have done had it by now.' The prosecutrix further testified that she was not going with anyone else during the period she became pregnant with the baby, which she had with her in court.

On cross-examination the prosecutrix testified that on the occasion of the intercourse with the defendant he used no contraceptives of any kind; that he paid her no money; that he just asked the prosecutrix to meet him on the corner of Bell Street and Auburn Avenue, and that was all the defendant did to get her up there to have intercourse with her; that she knew why he wanted her to meet him (inferring that it was to have intercourse); that that was the reason she did not ask him any questions. The following colloquy took place: Counsel for the defendant: Q. 'From October 8th to November 8th, 1947, did you have an intercourse with anyone other than the defendant?' Counsel for the State: 'If she had it would be prior to the time she became pregnant.' Counsel for the defendant: 'It is within a month of the time she had one with this defendant. The baby was born in August, on the 31st.' The court: 'The month of October wouldn't be within the period of gestation.' Counsel for the defendant: 'Do you hold October 9th wouldn't be?' The court: 'I am not a medical man, but the courts have held that evidence is not relevant unless within the period of gestation, but nine months back would make it November 31st.' Counsel for the defendant: 'She said it happened on November 8th, and I think if the State is allowed to show intercourse with the defendant over nine months before, the defense should be permitted to show it with others over nine months before.' The court: 'We will confine it then to October and November.' The defendant: 'I had an intercourse in October with James Moseley, but don't know what date it was. It was not the latter part of October. As far as I can remember it wasn't. I had intercourse with him a lot of times before I went with Woodrow. He did not use contraceptives.' The prosecutrix further testified that the reason she knew that the defendant was the father of the child was: 'I had an intercourse with him and had no others until I got a report from the doctor at Crawford Long, who said I was pregnant. That was two or three weeks after I had the intercourse with Woodrow.' The baby was born August 31, 1948.

The defendant in his statement stated that he had intercourse with the prosecutrix in July of 1947 and that from that time until the following March, because of an operation he had not been physically able to have intercourse with anyone, not even his wife. He had a wife and two children and had never been in any trouble of any shape at all. There was no record of any trouble that the defendant had given at all. The prosecution in this case looked like a frame-up to the defendant.

E. A. Wright, Atlanta, Joseph W. Love, Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., Atlanta, John I. Kelley, Sol., Atlanta, William Hall, B. B. Zellars, Atlanta, for defendant in error.

GARDNER Judge.

(a) We will deal with grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13 and 14 together, for they, in substance, deal with the usual general grounds as embraced in grounds 1, 2 and 3. Preliminary, the State sets out in its argument and citation of authority that from November 9, 1947, the date of the intercourse between the accused and the prosecutrix, until the birth of the child August 31, 1948, was 296 days. This is correct. The State also calls to our attention State v. Shaw, 89 Vt. 121, 94 A. 434, L.R.A.1915 F. 1087. Periods of gestation may vary from 252 days to 300 days before the birth of the child. See Souchek v. Karr, 78 Neb. 488, 111 N.W. 150, 151. Any period in excess of 300 days is exceptional and each day over 300, the exceptional character of the case is intensified. In France, 300 days has been adopted as the accepted period of gestation. French Civil Code, Article 315. McNeely v. McNeely, 47 La.Ann. 1321, 17 S. 928. Our courts will take judicial notice of what medical science has determined to be the normal periods of gestation and will consult medical books for that purpose. See McNamara v. McNamara, 181 Cal. 82, 183 P. 552, 7 A.L.R. 313, 319. While the State does not call it to our attention, that same authority, 181 Cal. 82, 183 P. 555, 7 A.L.R. 319, in a different excerpt from that mentioned above, states: 'An examination of recent medical text-books and articles leaves no doubt as to two points: First, that 304 days is a possible period of gestation; and, next, that it is quite an exceptional one. While the average period of gestation is generally taken as 280 days, there are instances vouched for by reputable authorities where the period has exceeded 330 days, and there are instances, too well authenticated apparently to admit of reasonable question, where the period has exceeded 320 days.' 304 days of gestation is presumed to be excessive. There are other authorities on the period of gestation, although not called to our attention by the State, which are pertinent here. In Pierson v. Pierson, 124 Wash. 319, 214 P. 159, the Supreme Court of Washington held, ...