107 Ga. 675 | Ga. | 1899
Virgil Merritt was placed on trial in the superior court of Carroll county, on an indictment charging him and Avery Merritt with the offense of assault with intent to rape. The defendant was found guilty, and excepts to the judgment overruling his motion for new trial. It appears from the record that Mary White, the female alleged to have been assaulted, was about twenty years of age. Among the witnesses introduced by the State was her father. His testimony tended to show that he entered his house about three o’clock on the afternoon of a certain day, and discovered the defendant making the criminal assault upon his daughter, both of them lying upon the bed, he having his hand upon her throat, and that the presence of the father prevented further assault by the defendant. It appeared further that the defendant remained there in the house for some time with the father, and no steps were taken to apprehend .him on that day, the father giving as his reason for not taking any violent action in the matter that he was unarmed and the defendant was armed with a pistol; but no reason appears why a warrant was not promptly sworn out. On the following day a warrant was sworn out by the uncle of the girl, charging this defendant and his brother, Avery Merritt, with the offense of assault with intent to rape. This warrant was offered in evidence by the defendant, and one ground in the motion for new trial is that the court committed error in excluding it. Under the peculiar facts and circumstances of this case, we think the court erred in not admitting, this warrant in evidence. The facts insisted on for the conviction of
Ordinarily in a criminal case it is no doubt true that the bare fact as to who swore out a warrant, or when it was sworn out, against the defendant, would be immaterial; but who can say, under the circumstances of this case, that if the father took no steps for the immediate apprehension of a criminal who had committed an outrage upon the sanctity of his home and the honor of a member of his household, suffered a delay of the matter until the following day, during which time the alleged criminal was at liberty, and even then did not appear upon the warrant as his prosecutor, it would not be a circumstance that a jury should consider in weighing the truth of his sworn statement on the trial and the degree of credit that it should receive? We do not mean to intimate what weight this evidence offered by the defendant and excluded by the court should have before the jury. Such conduct on the part of the prosecutor and father may be open to such explanation as would be satisfactory to the jury, but of all this the jury themselves would be the judge. As argued by Nisbet, J., in delivering the opinion of the court in the case of Camp v. State, 3 Ga. 420, 421, on account of the peculiar nature of this crime of rape; on account of the fact, as Lord Hale puts it, “that this accusation is easily made, hard to be proved, and harder to be defended by the party accused, notwithstanding his innocence, ’ ’ the defend
Ordinarily a court should not instruct the jury what particular testimony before them is, or is not, entitled to great weight or consideration, especially where there is no statute or rule of law stating that the particular testimony in question should be considered by the jury as being of great weight. In this connection see the views of this court, expressed in the opinion delivered at the present term in the case of Raleigh & Gaston R. R. Co. v. Allen, 106 Ga. 572. We think the decision in the
As a new trial is granted in this case, we purposely refrain from expressing or intimating any opinion as to the weight or sufficiency of the evidence to sustain the verdict; except to .say that the contest over the material issues of fact in the case was of such a close nature as to require a new trial, on account ■of the errors of law committed in the charges and rulings of .the court hereinbefore indicated. •
Judgment reversed.