34 Ga. 1 | Ga. | 1864
In truth, there scarcely is any point to be decided by the Court in this case. The only ground of alleged error relied on by the Counsel for the plaintiff, and on which he contends that the judgment of the Court below ought to be reversed, is that of newly discovered evidence; and from the admission of the Solicitor General, which is in accordance with the facts, as certified to by the Judge, his objection was not taken at the proper time, but only stated when he was making his argument.
But waiving this irregularity, and considering the point as taken at the proper time, what is it ? Why, that the residence of John Eields — admitted to be a material -witness, and that his testimony was not cumulative — was not disclosed, nor did it otherwise appear that he was within reach of the process of the Court, or that the plaintiff in error expected, or bad reason to expect, the benefit of his testimony at a future trial.
Whatever rules the Court may have prescribed heretofore, or the wisdom of those rules, we submit, has not the Code législated upon the subject ? Section 3640 declares “ that a new trial may be granted in all cases when any material evidence — not merely cumulative in its character, but relating to new and material facts — shall be discovered by the applicant, after the rendition of a verdict against him, and shall be brought to the notice of the (jourt within the time now allowed by law for entering a motion for a new trial.”
How, we repeat, that it is admitted that the evidence of
The motion, then, for a new trial being overruled by the Court, can this Court do otherwise than reverse the judgment ? We' think not.
As to whether the prosecutrix was virtuous or not, in August, 1863, and was induced by persuasion and promises of marriage, or other false and fraudulent means, to yield to the lustful embraces of the defendant, and to allow him to have carnal knowledge of her, are questions of fact, to be ascertained and decided by the Jury. But we hold that the testimony that she had sexual intercourse with other men in October, 1863, is incompetent to disprove the foregoing allegations, and was properly, therefore, rejected by the Court. We decline, for the present, assigning our reason for this opinion; and as to the punishment imposed by the Court being exce'ssive and disproportionate to the crime under the circumstances of the case, all we have to say is that the law for this offence punishes the transgressor by imprisonment and labor in the Penitentiary for a term not less than two, nor longer than twenty years. The Judge has not exceeded his limits, and we are not willing to control his discretion.
The law is severe, but it permits the alternative provided by the Mosaic Code for its violation. “ If a man entice a -maid that is not betrothed, and lie with her, he shall surely endow her to be his wife.” — Ex. 22 : 16. Our Code provides that “ the prosecution for seduction may be stopped at any time by the marriage of the parties, or a Iona fide and continuing offer to marry on the part of the seducer.” — Code: sec. 42 JO.
The judgment of the Court below is reversed on the ground indicated, to-wit: the newly discovered evidence.
