2821 | Ga. Ct. App. | Oct 14, 1910
Lead Opinion
Hunt was indicted for a violation of § 110 of the Penal Code, which is as follows: “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 motion for a new trial, based on the general grounds and on thirty-two special grounds, was overruled, and the defendant brought the case here for review. It is earnestly insisted by his counsel that the evidence did not make out his guilt beyond a reasonable doubt, in that the proof was not ’clear as to the age of the girl at the date of her abduction, and it also appeared affirmatively that her father had abandoned his parental control of his daughter before the time when she was alleged to have been taken away from home; and the evidence was not at all satisfactory as to the fact of her abduction. It is also insisted that she was a prostitute of such bad character that she could not be abducted.
We will briefly notice the merits of the ease made by the evidence. As to the age of the girl, both her father and mother testified positively and unequivocally that she was seventeen years old on the 8th day of January previous to the trial of the case, which took place on September 1, 1909. An. aunt, who testified that she
As to the allegation that her father had abandoned his parental control, the evidence showed that she was taken away from her father’s house by the defendant. It is true that she had for several months lived with her sister in the. town of Cedartown, and that she and her sister were working in a factory- at that place, paid their own expenses, and furnished the room in which they were living; and there is also evidence that she'had made several visits away from her father’s home to relatives; but these facts did not even tend’ to show that parental control had been abandoned. “Until majority the child remains under the control of the father, who is entitled to his services and the proceeds of his labor. This parental power is lost — 1. By voluntary contract, releasing.the child to a third person. 2. By consenting to the adoption of the child by a third person. 3. By the failure of the father to provide necessaries, for his child, or his abandonment of his family. 4. By his consent to the child receiving the proceeds of his own labor, which consent shall be revocable at any time. 5. By consent to the marriage of the child, who thus assumes 'inconsistent responsibilities.
The learned counsel for the plaintiff in error earnestly contended that his guilt was not established beyond a reasonable doubt. The doctrine of reasonable doubt is one of fact, and not of law. Reviewing courts whose sole province is to correct errors of law should not enter the forum of facts and contest with the jury the standard of reasonable doubt. If so, jury trial becomes a useless formality. It is true the law fixes the standard of mental conviction as one that must be “sufficient to satisfy the mind and conscience beyond a reasonable doubt.” It is logically impossible for a reviewing court, where there is any evidence to support the verdict, to say that this standard was not reached. Indeed, the legal presumption is that it was reached and the mind and conscience satisfied, else the verdict would not have been found. Individually we may consider the evidence of guilt weak and unsatisfactory, yet juridically we must consider the evidence sufficient; and therefore the verdict must stand, unless the judge, in the trial, committed some material error which prejudiced the rights of the defendant.
We have examined the special 'assignments of error very carefully, and we can not find an error of a substantial or prejudicial nature in any of them. The objections made to certain excerpts from the charge, when considered in connection with the. entire charge, are without merit. On the contrary, the law applicable to all the issues made by the evidence relative to the constituents of
The exception that the judge did not instruct the jury anywhere in his charge as to the rules of law regarding impeaching evidence and the effect to be given thereto is not sufficient, even if erroneous, to justify a reversal, there being no request for such a chárge. The only witness in this case whom it was attempted to impeach. was the girl who, it is alleged, was inveigled and taken away from ’the control of her parent; and the impeachment simply went to prove her character as a prostitute. While the character of a woman for virtue, morality, and chastity goes to her credit, yet the fact of bad character is not sufficient to entirely discredit her evidence, and we think the weight that should be attached to it might be safely left to the intelligence of the jury who see her and ‘hear her testify. But it has been frequently held by the Supreme Court and by this court that in the absence of a request to charge on the rules of law relating to the impeachment of witnesses, a failure so to charge would not be reversible error. Strickland v. State, 4 Ga. App. 445" court="Ga. Ct. App." date_filed="1908-06-18" href="https://app.midpage.ai/document/strickland-v-state-5603101?utm_source=webapp" opinion_id="5603101">4 Ga. App. 445 (61 S. E. 841); Roberson v. State, 4 Ga. App. 833 (62 S. E. 539). .
The remaining grounds in the motion for a new trial all relate to alleged newly discovered evidence. No new, material, or substantive, fact is disclosed, but this alleged newly discovered evider^e is purely impeaching and cumulative in character. • It relates to the bad character of the girl who was abducted, and to her age at the time of the abduction. Both these questions were fully considered by the jury, and in our opinion this‘alleged newly discovered evidence, in all probability, would not have produced a different verdict, if it had been before the jury.
Judgment affirmed.
Dissenting Opinion
dissenting. ■ I can not concur in the judgment of affirmance, because in my opinion the newly discovered evidence would produce a different result. The record discloses a very ‘weak and doubtful case; and while I have no desire to interfere with the finding of the jury upon the testimony adduced, I think the ground of the motion based upon newly discovered evidence is meritorious. It conforms with every requirement of law, and there should be. another trial.