Wooten v. Wilkins

• Decision Date: 30 June 1869
• Citation: 39 Ga. 223
• Parties: ALFRED WOOTEN, plaintiff in error. v. PERRY WILKINS, defendant in error.
• Court: Georgia Supreme Court

39 Ga. 223

ALFRED WOOTEN, plaintiff in error. v. PERRY WILKINS, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, June Term, 1869.)

Dying declarations. Motion for new trial. Before Judge Green. Spalding Superior Court. February Term, 1869.

Wooten brought case against Wilkins for the seduction of his minor daughter, averring that she bore a child begotten by Wilkins, and she and the child died, and that thereby he lost her services and that of her mother, (in waiting upon her and the child,) and paid physician's bills, traveling expenses, burial expenses, etc. All the facts as averred, were proved, except that she was seduced, and that Wilkins was the seducer. Upon these points the following circumstantial evidence was offered: Two letters written by one of the witnesses for Wilkins, to said daughter, in which he speaks of great anxiety to see her, etc., but made no allusion to sexual intercourse. Her mother testified to the color of the child, (which lived a few weeks) and that it favored Wilkins; and a physician, as an expert, stated facts in his science going to show that a child begotten by Wilkins, probably would have had such color. It was shown that Wilkins frequently visited her at and before the date of her pregnancy, but there was no evidence of their being seen in any suspicious situation; and it appeared that other men stayed at the house where she was a servant. (It was stated in argument here, that the parties were negroes.)

During the trial, plaintiff's attorney asked the mother who the daughter said was the father of the child, and under what circumstances she said it, and stated that he wished to prove this as her dying declarations. The Court would not allowthe witness to answer the question. The verdict was *for defendant. A new trial was asked for, upon the grounds that the Court erred in refusing to allow said question answered, because the verdict was contrary to law and the evidence, and for certain newly discovered evidence. This last ground was not insisted upon. The Court refused a new trial, and that is assigned as error.

Samuel D. Irwin, for plaintiff in error, said the rule, section 3728 of Irwin's Code, confining dying declarations to homicides, was subject to exceptions, and cited McFarland v. Shaw, 2 N. Car., L. Repository, 102, (which was case by a father, for seducing his daughter,) 1 Gr., Ev., 156; 1 Phil., on Ev., 285, and notes.

Doyal & Nunnally, for defendant.

McCAY, J.

We will not disturb the verdict in this case. There may be some reason from the testimony to think that the defendant is the guilty party, but, as we have had occasion frequently of late to remark, this Court is no jury, nor does it have jurisdiction over questions of facts decided by a jury, unless that decision be so manifestly wrong as to make it illegal. This is not such a case, the testimony is not decided and clear either way, and the jury might well have found as they did.

1. Our brother Irwin, who argued this case, took a deep interest, as was right, in seeking the punishment of one, who, as he thinks, had wronged his servant; but the jury have not considered his evidence strong enough to authorize a verdict for him, and, with the proof as. it is, we cannot help him. The province of...