10 Ga. App. 78 | Ga. Ct. App. | 1911
This case presents about the most horrible and disgusting record we have been called upon to review since our service upon this bench began. Its disgusting details are utterly contrary' to all that we are accustomed to. We have considered the case carefully. The record contains many exceptions to rulings of the court and to instructions to the jury, but none of these are well taken. The case was fairly and ably tried. We are always reluctant to set aside a verdict deliberately returned by a jury and approved by a court, on the ground that there is no evidence to support it, and are especially reluctant to do so where the record
The accused was charged with a violation of Penal Code (1910), §110, which provides: “Any person who forcibly, maliciously, or fraudulently leads, takes, or carries away, or decoys or entices away, any child under the age of eighteen years from its parent or guardian, or against his will, or without his consent, is guilty of kidnapping.” The child alleged to have been inveigled was a girl about 17 years old, the daughter of a poor white farmer who lived in the country between Marietta and Atlanta. He had, as a farm hand, a negro boy, who slept in a shed-room in his house. This girl and the negro boy worked together in the field, and in some way, not disclosed by the record, he managed to become criminally intimate with her. One night, after she was somewhat advanced in pregnancy, her father missed her from home. He tracked her to a spot at a branch near by, and found that she was there joined by another woman, and then both were tracked to a point on the street-ear line between Marietta and Atlanta. It was shown that the other track was that of the defendant in this case, who was a sister of the negro boy already mentioned. In fact, earlier during the same night this negro woman had come to the prosecutor’s house, had called for her brother, and had told the prosecutor that she wanted him because one of her children was sick. It may be stated just here that this negro boy came back and went to work next morning, but a little latér in the day fied, and has not been heard of since. The next morning after the night on which the girl was missed from her father’s house, she and the defendant were seen to take a train together in Atlanta for Knoxville, Tennessee. They went together into a coach assigned to colored people. The porter seemed to suspect that the girl was a white girl, 'and, apparently having some curiosity as to why she should be riding with a negro woman, asked them about it, and the girl told him that she was a negro girl. At Blue Ridge, On the way to Knoxville, the negro woman gave the porter money to buy lunches, and he brought them in to the girl and the defendant. When they arrived at Knoxville, the porter consented to secure lodging for the negro woman, but refused to have anything to do with the white girl, and she went into another portion of the city and se
Now, if this were all the testimony, there might be enough to Justify a strong suspicion that this negro woman had decoyed this white girl away in order to shield her brother from the crime he had committed — a -crime which, though punishable by only a small penalty, so far as the law is concerned, would probably have been dealt with much more severely by members of the community if once it became known. But the State did not stop there. It brought the girl herself to the witness-stand. She confessed her miserable condition, and stated on the stand that she hereslf had appealed to this sister of the man who had been a partner with her in her unspeakable crime, and had persuaded this woman to take her to Knoxville, Tennessee. The girl herself was ignorant and untraveled, and did not know how to get away from home. The. negro boy had furnished the girl with $13. She gave this to the negro woman and told her to purchase the necessary tickets. The understanding between them was that when they got to Knoxville, and the girl secured a lodging place, this negro woman would wait on her there. According to the girl’s testimony, however, she never saw anything more of the defendant from the time they last separated at the train until after they were arrested a few days later. If the State’s circumstantial evidence made out even such a prima facie case of kidnapping or inveigling as to put upon the defendant the burden of explaining the circumstances, the State’s own testimony as it fell from the mouth of this witness, the girl herself, furnished the explanation, and absolutely destroyed whatever approach to a case the State' had previously made. The defendant’s own statement of the affair was similar to the girl’s.-
It is insisted (though there is no direct proof of the fact in the record) that this girl is weak and unlettered, and that the defendant is a shrewd and designing woman, and that the girl, even when she was testifying, was so far under the influence of this woman that she lied as to the salient facts of the case. Be this as it may, the State is not in a' position to assert it here. • The State could not make out a case without putting the girl on the stand, under all the circumstances. If the actual truth is different from what it appears to be according to this record, this unfortunate state of affairs comes about through the inability of' the State
If this woman is guilty, the State has not proved it; for it is material in a prosecution of this kind for the State to show that the defendant “forcibly, maliciously, or fraudulently” led, took, or decoyed away the child. Now, as to a child under the age of discretion, it might be sufficient merely to show that the child ran away from home and was materially assisted by the defendant in getting away. A child of tender years is not supposed to have sufficient will and judgment to direct an affair of that kind; but this girl was above the age of discretion, was about 17'years old, was about to become a mother, was in a condition that demanded action on her part, and, if she is telling, the truth about it, she did what was most natural — appealed to this woman to go away with her and help her shield her disgrace. If this is all the defendant did (and it is all that the proof shows that she did), she is guilty