Taylor v. State
| Decision Date | 29 May 1943 |
| Citation | 171 S.W.2d 403,180 Tenn. 62 |
| Parties | TAYLOR v. STATE. |
| Court | Tennessee Supreme Court |
Error to Circuit Court, Cannon County; T. L. Coleman, Judge.
Virgil Taylor was convicted of having unlawful intercourse with a girl under age of consent, and he brings error.
Reversed and remanded for new trial.
Cummings & Melton, of Woodbury, for plaintiff in error.
Ernest F. Smith, Asst. Atty. Gen., for the State.
There was a conviction in this case of violation of the age of consent, with a prison sentence of three years. Taylor was nineteen years of age and the girl seventeen at the time of the trial in October 1942. She gave birth to a baby October 28th, pending disposition of a motion for a new trial. They went together for three or four years and she says and he agrees that they had many acts of intercourse during the year or more prior to February 8, 1942, the date elected by the State to which to relate this prosecution. There were two defenses: (1) That defendant did not have such relations with this girl after December, 1941, and was not at her home and did not commit the act, as she testifies, on February 8, 1942; and (2) that she was unchaste and had had such relations with other men before his first intercourse with her; that she was a bawd and lewd woman within the terms of the statute. Code 1932, § 10786.
We find no preponderance of evidence against the verdict on either proposition. Not only does defendant admit repeated commission of the offense on many occasions other than the elected date, but the girl is supported by the testimony of her parents as to his presence and opportunity on February 8th, and his admission of frequent use of like opportunities on many other dates is corroboration of her testimony as to his use thereof on February 8th. Ross v. State, 130 Tenn. 387, 170 S.W. 1026. The birth of the child also tends to corroborate her as to this date of her pregnancy corresponding, as it does, to this period. Also, his conversation and conduct when first accused by her father is in some measure corroborative, in that he did not deny his guilt, but practically conceded it and, in effect, agreed to marry the girl. And as to the defense of unchastity, there was no direct evidence of illicit relations with other men although there is testimony as to admissions made by the girl to one or more associates, and of one or more opportunities for such relations under suspicious circumstances with two other men. However, neither of these men testified, and in view of conflicts and contradictions in the testimony, the jury was justified in its verdict. It becomes unnecessary to pass on several questions raised as to the conduct of the trial, in view of our disposition of the assignment complaining of the refusal of a new trial on the ground of newly discovered evidence.
After the verdict was rendered and in support of this motion affidavits were introduced by the two men to whom reference has been made in which they state positively that they each had such relations with this girl on the occasions referred to on the trial. Also, the affidavit of a young girl is produced in which she confirms directly the statement of Palmer Pelham, one of these men, saying that she was with the parties and saw conduct strongly confirmatory of Pelham. Other affidavits confirm the statements of one Joe Smith, the second of these men. The affidavits of both of these men are positive and circumstantial.
On the primary question of reasonable diligence, essential to this ground for a new trial, neither of these men was apparently available as a witness on the trial. Pelham was in a Nashville hospital with tuberculosis and Smith was working in Detroit, Michigan. Pelham says he had refused to make a statement before the conviction of Taylor, but does so now, impelled by conscience, to prevent an injustice; that he is still confined in the hospital but will be released in January and will appear and testify on a new trial. Smith makes substantially the same statement.
This Court gives great weight to the action of the trial judge on a motion for a new trial, and when there is an oral hearing and the judge sees and hears the witnesses on the motion, and the testimony adduced is conflicting, his findings will be given the weight of a jury verdict. Thomas v. State, 109 Tenn. 684, 75 S.W. 1025; Leonard v. State, 155 Tenn. 325, 292 S.W. 849.
In the instant case neither of the two principal affiants were present, or then available, and all the evidence offered on the trial of the motion was by affidavits. There was no...
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