Thomas v. State
| Decision Date | 23 January 1917 |
| Docket Number | 6188. |
| Citation | 91 S.E. 247,19 Ga.App. 104 |
| Parties | THOMAS v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
There was testimony from which the court could have found that an original letter from the prosecutrix to the accused was in the possession of the latter; and, since he could not lawfully be compelled to produce it himself, the court did not err in admitting secondary evidence as to its contents. Farmer v. State, 100 Ga. 41, 28 S.E. 26; Moore v. State, 130 Ga. 322, 332, 60 S.E. 544; Nalley v State, 11 Ga.App. 15, 19, 74 S.E. 567.
The court did not err in declining to admit testimony relative to the disposition of the bastard child, since such evidence could throw no light on the question at issue. Besides, the alleged error in the exclusion of this testimony is not precisely pointed out by the exception.
No reversible error was committed in admitting testimony as to the general good character of two female associates of the prosecutrix; since proof of their good character tended to contradict evidence offered by the defendant to show intemperate, loose, and careless behavior on the part of the prosecutrix while she was in company with these persons and the defendant.
One distinct and unequivocal statement by the judge in his charge to the jury, that the jury must be satisfied beyond a reasonable doubt of the guilt of the accused of the offense charged in the criminal accusation upon which his trial is pending, is sufficient, and obviates the necessity of reiterating this instruction as to the various phases of the case developed by the evidence.
(a) The fact that the trial judge charged that the jury must be satisfied "beyond a reasonable doubt" that the accused was guilty of the offense of fornication, but instructed as to the offense of seduction that the jury must be satisfied of the guilt of the accused "to a moral and reasonable certainty," without making any specific reference in that immediate connection to the doctrine of reasonable doubt, is no ground for a new trial, as tending to suggest to the jury that a greater degree of certainty was necessary to warrant a conviction for the one offense than for the other (see Austin v. State, 6 Ga.App. 211 64 S.E. 670; Norman v. State, 10 Ga.App. 802, 74 S.E. 428), where the jury were generally instructed elsewhere in the charge that they could not convict the defendant unless they were satisfied of his guilt beyond a reasonable doubt.
"It was not reversible error, on the trial of one under an indictment charging him with the commission of the crime of seduction by 'persuasion and promises of marriage only,' for the court to give the jury the full definition of the crime of seduction as contained in Pen. Code 1910, § 378, including the accomplishment of that crime, not only by 'persuasion and promises of marriage,' but also by 'other false and fraudulent means,' where the court subsequently instructed the jury, without specially retracting or explaining anything contained in the above instruction, in effect that the state relied for conviction upon proof of persuasion and promises of marriage." And where the jury were so restricted to the evidence relating to "persuasion and promises of marriage" only, it was not error to omit any instruction as to what would constitute the "other false and fraudulent means" by which the crime could be accomplished. Thomas v. State, 146 Ga. 346, 91 S.E. 109.
In the trial of this defendant for the offense of seduction, under the evidence as a whole and considered in connection with the entire charge, the following instruction to the jury was reversible error: "The proof of lascivious indulgences and wanton dalliances, with other evidence short of direct proof of the overt act, may authorize the jury to infer actual guilt of the illicit act; but it is not a lawful defense for the accused to blacken or blackball the character of his alleged victim by proving loose declarations or showing imprudent or immodest conduct on the part of the woman he is accused of seducing." Considering the entire charge, the real defense relied upon, and the evidence offered in support thereof, this charge was harmful: (a) "Because it tended to discredit in the minds of the jury the defense, interposed by the prisoner, that the woman he was charged with seducing was not a virtuous female"; and (b) "because it contained an intimation by the court that the facts sought to be proved by the defendant constituted no lawful defense, but amounted only to an effort on his part to 'blacken and blackball the character of his alleged victim' "; and also (c) because this language of the court was "calculated to raise in the minds of the jury such a prejudice against the defendant and his defense as to require the setting aside of the verdict of guilty." Thomas v. State, supra.
In view of the fact that there must be a new trial of this case, it is unnecessary to consider the grounds of the motion for a new trial based upon alleged newly discovered evidence; nor need the remaining assignments of error be passed upon, since they are either not sufficiently definite and complete to present any question for determination, or are without substantial merit, or else relate to alleged errors which can scarcely recur on another trial.
Additional Syllabus by Editorial Staff.
A woman is a "virtuous female" if her body be pure and if she has never had sexual intercourse with another, though both her mind and heart be impure.
Error from Superior Court, Laurens County; W. W. Larsen, Judge.
H. G. Thomas was convicted of seduction, and brings error. Reversed in conformity to answers to questions and certified to the Supreme Court. (91 S.E. 109.)
Jos. H. Hall, of Macon, Davis & Sturgis, of Dublin, C. A. Weddington, of Cochran, I. N. Eubanks and Jas. A. Thomas, both of Dublin, and Walter R. Brown, of Atlanta, for plaintiff in error.
E. L. Stephens, Sol. Gen., of Wrightsville, and J. S. Adams, of Dublin, for the State.
It is unnecessary to discuss any ground of the motion for a new trial except the particular ground upon which the lower court is reversed, and no extended discussion of that ground is required, in view of the ruling made by the Supreme Court upon the abstract question decided by that court in this case, and left for application by the Court of Appeals.
The precise question submitted to the Supreme Court, with the answer made thereto by a majority of that court, was as follows:
" 'In the trial of a case of seduction, was the following charge to the jury error because it tended to discredit in the minds of the jury the defense, interposed by the prisoner, that the woman he was charged with seducing was not a virtuous female, or because it contained an intimation by the court that the facts sought to be proved by the defendant constituted no lawful defense, but amounted only to an effort on his part to "blacken and blackball the character of his alleged victim?" Or was this language of the court calculated to raise in the minds of the jury such a prejudice against the defendant and his defense as to require the setting aside of the verdict of guilty: "The proof of lascivious indulgences and wanton dalliances, with other evidence short of direct proof of the overt act, may authorize the jury to infer actual guilt of the illicit act; but it is not a lawful defense for the accused to blacken or blackball the character of his alleged victim by proving loose declarations or showing imprudent or immodest conduct on the part of the woman he is accused of seducing"?' The Court of Appeals is instructed that the excerpt from the charge quoted in the above question is erroneous for the reasons stated; but whether the error was cured, or the evidence was such as to avoid the necessity of a new trial, depends upon an entire review of the case, which can be done only by the Court of Appeals."
It will appear, from an examination of the foregoing question and answer, that the Supreme Court ruled upon the abstract point...
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