49 Ga. 185 | Ga. | 1873
No words more pregnant with judicial wisdom or more appropriately uttered, were ever pronounced by a Judge than those of that great and good man, Lord Hale, when he said, “ It must be remembered that rape is an accusation easily to be made and hard' to be proved, and harder to be defended by the party accused, though never so innocent.” He, then, alter mentioning two remarkable cases of malicious prosecution for this crime which came within his own knowledge, adds, “ I mention these instances that we may be the more cautious upon the trial of offenses of this nature, wherein the Court and jury may, with so much ease, be imposed upon without great care and vigilauce, the heniousness of the offense many times transporting the Judge and jury with so much indignation, that they are over-hastily carried to the conviction of the person accused thereof, by the confident testimony, sometimes, of malicious and false witnesses1 Hale, 635, 636.
The following rules and principles are of great worth and significance, and should not be forgotten in the trial of such cases. They are to be found in all the elementary works on criminal law, and if they are thoroughly understood and applied, would go far to protect juries from imposition and innocent parties from being made victims to the revenge of a witness, or to an attempt to protect reputation, lost by consent, under the cry of rape. “ Though the party ravished is a competent witness, the credibility of her testimony must be left to the jury, upon the circumstances of fact which concur with that testimony. Thus, if she be of good fame — if she presently discovered the offense and made search for the offender— if she showed circumstances and signs of the injury, whereof many are of that nature that women only are proper examiners — if the place where the act was done were remote from
Apply these principles to this case and there is not one single particular in which the testimony comes up to them. True, the witness was not proven to be of ill fame, nor did it appear she had given wrong descriptions of the place. But ■ it does appear that the act was done, if not in a public place, near to a neighborhood road — -just outside of it — which was continually being traveled; that the wife and mother-in-law of the accused had just walked off — were still in sight — and could have seen them had they “ looked round;” that she did not “ halloo loud;” that she got up, finished getting wood and went to washing near by defendant’s house; did not tell anybody but her sister-in-law, the next Sunday, four days after-wards, and that proven by nobody but herself; that the sister-in-law seems to have been so little impressed by it that she did not tell the father or any one else until after the pregnancy was discovered; that it was the first time she ever had connection with a man; that she.was, by this first act, committed by violence and over her resistance, begotten with child, and never said one word about it which was properly proven, until after she was known to be pregnant. This dereliction from the rule quoted is too great on the part of the prosecution to allow the verdict to stand. Had any l’easonable explanation been given why such facts were not proven, or why
Judgment reversed and a new trial granted.
