53 Ga. App. 207 | Ga. Ct. App. | 1936
Glenn H. Barton was convicted of seduction. He complains of the overruling of his motion for new trial. At the time of the alleged seduction, in July, 1932, the prosecutrix was fifteen years old, and the defendant eighteen. They met for the first time on Sunday, July 3. The evidence fails to fix with definiteness the date in July when the first intercourse took place. The prosecutrix testified: “ One night he came down, and we went to a show in town; and when we started back and before we got home he turned off a road leading to Yarborough’s pond, and he stopped on that road, and he embraced me and he says', ‘Edna, do you love me?’ and I says, ‘Certainty, Glenn, I love you more than anybody else in the world;’ and he says, ‘Do you love me enough to marry me?’ and I says, ‘I don’t know about that. I am rather young yet, and I don’t know anything about the ways of the world much,’ and he says, ‘Answer me,’ and I says, ‘Yes,’ and he said then, asked me the question, ‘Will j^ou marry me sometime?’ and I answered, ‘Yes.’” On cross-examination the witness testified: “This first intercourse occurred on the road leading to Yarborough’s pond.” It is not shown how many trips were made to Yarborough’s pond, or on which trip the intercourse occurred. The defendant left Gordon County on July 22, to. go to Chicago, and did not come back until the latter part of September. The prosecutrix further testified: “I couldn’t tell you how many times I had intercourse with him before Jie left for Chicago; it was most all the time, so many I can’t recall. He came three or four nights out of every week, and of course that don’t mean I had intercourse with him every time, but practically every time he came. . . I allowed him to have intercourse with me because I loved him. Prior to that time he had made love to me and told me he loved me. I believed him. He talked about marrying me. He said we were. going to be married. As to what he said about loving me and marrying me at the time I allowed him to have the first intercourse, he says, ‘You don’t care if we have intercourse now, do you, since we are already engaged?’ And I says, T don’t know.’ . . I had confidence in him and believed him, and yielded to him by reason of that and by reason of my love for him. He promised to marry me and I believed he would marry me, arid I allowed him to have intercourse because of that.” A number of letters written by the defendant, at this time, to the prosecutrix, were introduced in
It is complained .that the court, after stating the charge of seduction as set forth in the indictment, charged the jury as follows: “ There is also embraced within the charge and within the range of the evidence in this case the lesser offense of fornication. He pleads not guilty to each of these charges, and the plea and the charges form the issues which you are to try and determine by your verdict.” The error assigned upon this charge is, that by his statement the defendant admitted his guilt of fornication, and that
Complaint is made that the court refused the following requested instruction: “If you find that Edna Hughes consented and had sexual intercourse with the defendant, and thereafter the defendant by persuasion and promises of marriage induced her to repeat the act, the defendant could not be found guilty of seduction.” After a careful reading of the evidence we think the evidence as to the time of the proposal of marriage and the first sexual intercourse between the parties was such that the above principle should have been given in charge to the jury. If the consent to the sexual intercourse had been procured before the promise of marriage and the act had been consummated, a promise afterwards made would not make the prior sexual act seduction. If the consent to sexual intercourse is part of the original agreement to
Error is also assigned upon the argument of the solicitor-general to the jury, which was in substance that if the defendant went to the penitentiary in this ease it was his own fault, as he could have stopped the prosecution at any time by marrying the prosecutrix; and that the solicitor would then and there make the proposition that if the defendant would marry her and give a name to the little boy (pointing at the child then in court with his mother, Edna Hughes) the prosecution would then be stopped and-the case against him dismissed. A motion was made to declare a mistrial on account of this argument, as being unfair, improper, harmful, and prejudicial to the defendant and calculated to arouse passion, bias, and prejudice in the minds of the jury against "the defendant. The court “reprimanded the solicitor-general, and directed the jury not to consider the argument,” but overruled the motion for mistrial. That the language used was subject to the objection and criticism made can not be qxxestioned. It will be recalled that this child was not the result of the act of sexual intercourse which constituted the offense of seduction, as alleged. The child was born on August 29, 1933, and was begotten in November, 1932. The alleged seduction took place in July, 1932. If the defendant be the father, it was still an issue for the jury whether he was guilty of seduction, as seduction was not necessarily involved in the act of conception. In a proceeding for bastardy, such remarks, if proper (which we do not concede), might have been justified. As was said in Parker v. State, 11 Ga. App. 251 (5) (75 S. E. 437) : “In a trial for seduction, the maintenance and education of a child which may have been the result of the illicit connection is not involved, nor is its legitimacy affected by the verdict in the case. The prosecution for seduction is for the punishment of a public wrong, and not for redress of a private injury. It was error,-therefore, for the court to allow the solicitor-general, over the objections of the accused, to urge that the defendant
Judgment reversed.