Smith v. State

23 Ga. 297 | Ga. | 1857

By the Court. —

Lumpkin, J.

delivering the opinion.

Amongst other things, the Court charged the jury in this case, “that if a witness should swear wilfully and corruptly false in one particular, that would be sufficient to discredit their whole! testimony, unless supported by another witness or corroborating circumstances.”

Now, this charge may be abstractly right, but how does it stand as applied to the proof in this case ? Why, it means this, that notwithstanding Miss Sears may have perjured herself as to a most material fact, swearing as she did before the committing Magistrates, that she resisted to the utmost of her ability, and on her present examination, that she consented and participated in the guilty pleasure; still, if she was corroborated by John Cochran, as to the circumstance of Smith’s being there that day, and that he heard them talking in the room together when he returned from getting rvood, that her credit might be considered as restored.

Wears aware of the difficulty of prescribing a fixed rule upon this subject. All the discrepances which occur in giving in testimony, are to be carefully attended to. The novelty of their situation, the agitation which accompanies it, the cajolery or intimidation to which witnesses are subjected by Counsel; these and other causes, may occasion mistakes, and perhaps satisfactorily account for them-, but should a witness swear wilfully and corruptly false to a leading fact about which there could be no unintentional error, as for instance whether the act in this case, was done with or without the consent of the party, and her testimony was simply corroborated, as to an immaterial point, for myself, I could not convict upon such evidence. Who could render a verdict upon such proof, and entertain no reasonable doubt as to the guilt of the defendant ? I might not altogether reject the testimony as utterly untrue. But the result must necessarily be, that it was so far invalidated as to force me to aquit the accused, for want of reliable proof We shall remand this cause for a re-hearing. The defendant, it is admitted, is three score years old. He has been convicted of an unnatural crime, incestuous bastardy, upon the person of hisneice, and that by the testimony of a single witness, who contradicts herself as to a main fact, about which there could be no misconception. Besides, the circumstances attending this connection, as testified to by this young woman, although not impossible, are certainly very unusual, and consequently improbable, to say the least of it. The English law anciently held, that pregnancy could not follow rape, and that therefore, its presence destroyed the validity of the accusation. But Hawkins, Hale & East held that such is not the law, because the opinion in which it was founded, was false in fact, and that impregnation may take place where there is a great repugnancy on the part of the female, amounting even to a virtuous recoil or a sense of honor at the time. We shall probably never know what is necessary to cause conception. We are willing to concede that the law of constitutional orgasm or the excitation of the sexual passion may be such as that females may conceive without their knowledge, while under the influence-of narcotics, intoxication or asphyxia, or even while asleep, if you please, (see Dr. Gooch’s lectures on midwifery, p. 81) still we apprehend the case is rare where a virgin has been begotten with child; “the coldest day of the winter,” “with snow on the ground:” “in a room without fire;” where there has been only a single coitus, seated in the lap of her ravisher or seducer, Avith her back to him; we repeat, that while such an instance may be barely within the bounds of possibility, it is exceedingly improbable to say the least of it; certainly no such case is reported in the Causes Celebres, or related by any writer on medical jurisprudence; and yet, such is the mode and manner of the illicit intercourse which took place between Miss Sears and her uncle, as sworn to by herself.

This case had best undergo another trial; Counsel differ materially as to the true meaning of a material portion of the bill of exceptions, and we find ourselves unable to say which is the proper reading. We are rather inclined to hold with the attorney for the plaintiff in error, and that would involve the witness, Miss Sears, in additional discredit in saying to Mrs. McGuffin, after the birth of her child, that “God knew who its father was, she did not.”

This deed is alleged to have been done at the house of Mrs. Cochran, the grand-mother of Miss Sears, where she was visiting at the time, and where there was a single uncle living, twenty-five or thirty years old, who, in the month of August, when she was far advanced in pregnancy, talked with Dr. Jackson about getting some ergot to relieve the obstruction of the monthly courses of a certain young lady, admitted on his examination in open Court, to have been Miss Sears, but Avhich application Avas concealed until after the birth of the child. A second trial might reflect some further light upon this transaction. Justice, Ave are satisfied, requires that a new trial be granted.

Judgment reversed.