11 Ga. App. 251 | Ga. Ct. App. | 1912
The plaintiff in error was convicted of the offense of seduction, and he excepts to the judgment overruling his motion for a new trial. As the case turns upon some of the special assignments of error, we shall express no opinion upon the testimony. It suffices to say that the evidence warranted the coifviction and the sentence. But though the defendant be accused of a most horrible crime (and we can imagine no fouler criminal than one guilty of seduction), he is entitled to a fair and impartial trial, according to the rules of the law; and the just resentment and passion which is necessarily aroused by the very character of the charge should not be permitted to be inflamed so as to prejudice the rights of the accused, or place upon him a burden which the law does -not impose.
We are clear that as to most of the exceptions there was no error. There was none in the admission of the testimony of which complaint was made, nor in the ruling upon the question which the solicitor-general was permitted to ask. But we think that in charging the jury the learned trial judge, inadvertently perhaps, depreciated the most vitally important testimony which was at the defendant’s command, and that he perhaps underestimated the effect of the language used in the concluding argument of the State’s counsel, which submitted to the jury issues foreign to the case, but the suggestion- of which was manifestly calculated to weigh heavily against the accused.
1, 2. The first and second headnotes are self-explanatory.
3. It is alleged in the 4th ground of the motion for a new trial that the solicitor-general asked G. 33. Lanier: “Didn’t you go to Mr. Lee Cheek’s with your brother on Sunday before this case was tried the last time, and didn’t you or your brother pull out money in the presence of Mr. Cheek and offer it to him, and say to, him that you would pay him money if he would go to Decatur on Tuesday and swear that Miss Tedder’s character was bad? Didn’t Mr. Cheek tell you that he was not the man that could be bought to swear a lie? Did you not try to get Mr. Hand to go to Decatur and swear against this young lady?” The movant objected to these questions at the time, and assigns the same as error. He contended then as follows: By Mr. McClelland, counsel for the defendant: “My objection is this. He proposes tó ask this witness, in the presence of the jury, if he did not go to
Of course, if the solicitor-general was asking these questions merely for the purpose of discrediting the witness, without any bona fide intention of proving the facts to which he referred, simply hoping to leave a trail of indefinable prejudice in the minds of the jury after they had retired to their room, his conduct would have been most reprehensible. But neither the trial court nor this court can lightly assume that a member of the bar, of undoubted standing in bis profession, would be guilty of such practice. The trial judge relied upon the statement that the facts which were the subject-matter of the discussion would be established during the course of the trial, or at least that the counsel expected to prove the facts to which he referred by his question; and his ruling, permitting the question to be asked, was based upon this assumption. We have no doubt that the fact that witnesses were not introduced to testify upon the point was due to oversight; but in any event, when the issue of good faith is raised under such circumstances as those presented by this record, it must be determined by the trial judge, in the exercise of his discretion, and that discretion will not be interfered with, unless it is perfectly plain that there was an abuse of discretion.
4. In the 5th ground of the motion for a new trial error-is assigned upon the instruction of the judge as to the affidavit of one Tuggle, who was not present at the trial, but whose testimony was submitted, by agreement, in the form of an affidavit which he had previously made. In view of the legal requirement that witnesses in criminal eases shall testify orally and in the presence of the defendant, and the fact that exceptions to the enforcement of this rule are extremely rare, it can be readily seen that the reference of the judge to the affiant Tuggle, by name, would naturally arrest and fix the attention of the jury upon him, and made it even more
A portion of this instruction, if considered apart from its context, is unobjectionable, but when the instruction is considered as a whole, the jury were told, in terms they could not misunderstand that they might believe as much of Tuggle’s testimony as they
5. The 6th ground of the motion for new trial assigns error upon the argument of the solicitor-general, which the court permitted over objection of defendant’s counsel. The defendant moved for a mistrial, but this motion was overruled, without even any instruction to the jury that they should not consider the objectionable argument. The solicitor-general argued as follows: “Miss Tedder is the mother of a three-year-old child. Parker is its daddy. By turning him loose he goes scot-free, and she will have the care of raising and maintaining this outcast. It is your duty to protect -this woman, and as well see that this child has a legitimate father.” We do not think that the court was required to order a mistrial, but the argument was improper, and the court should have so told the jury, and have withdrawn it from their consideration. In a trial for seduction the maintenance and education of a child which may have been the result of the illicit connection is not involved, nor is its legitimacy affected by the verdict. The prosecution for seduction is for the punishment of a