Thеre are twenty-seven grounds iu the motion for anew trial. The judge’s notes to 6th, 9th, 11th, 16th, 17th, 19th, 21st, and 22d grounds show that no error was cоmmitted as therein alleged. Several of the grounds merely state that evidence was offered over the objection of the defendants, without showing when the objection was made; and in other instances it affirmatively appears that the objection is first stated in the motion. The 13th, 14th, 17th, and 18th grounds assign error on the refusal of the court to allow the defense, to show that the members of the family of the young woman had acquired knowledge of her criminal relations with the defendant. But their knowledge or ignorance was wholly immaterial, and could in no way illustrate the issue on trial. In fact it was so immaterial as not to form the basis for impeachment by showing cоntradictory statements in relation thereto. The loss of the letter (6th ground) was properly proved as thе foundation for the introduction of secondary evidence of its contents. As to the 15th ground, it was not error to permit evidence as to the facts and circumstances leading up to the criminal intimacy. It merely gave the history of the relations between tlfe parties, was not a matter in dispute, and in substance was admittеd by the defendant’s statement. The evidence as to the úse of morphine with suicidal intent (16th ground) was in reply to a line of investigation begun by the defendant. The assignment of error can not be considered, because it аffirmatively appears from the note of the judge that the grounds of objection stated were not made during the trial. The motion itself recites that the “defendant
In the 19th ground complaint is made of the refusal of the court to declare a mistrial, becausе of a demonstration on the part of the young woman in the presence of the jury. . According to a note of judge, it was not of such a character as even to attract the attention of the jury, and it was nоt error to refuse to declare a mistrial.
The charge referred to in the 21st ground was free from error. Thе judge was instructing the jury as to the distinction between the offenses defined in the Penal Code, §§81, 82, and calling attentiоn to the different results growing out of the difference in the development of the foetus. He was not dealing with thе
The charge that “ the word ‘ child ’ as used in the Penal Code, § 81, means an unborn child so far dеveloped as to be ordinarily quick, so far developed as to move or stir in the mother’s womb,” was correct. Rex v. Phillips, 3 Campbell, [77].
In the 23d ground it is set forth that one of the jurors had expressed an opinion which disqualified him from serving on this triаl. On this point affidavits and counter-affidavits were submitted. The issue of fact thus raised was peculiarly a matter fоr the consideration of the judge. His discretion will not be controlled unless abused, and here it was properly exercised.
Nor was the verdict contrary to law or to evidence. If not absolutely demanded, it was overwhelmingly supported. The only point of attack on the State’s case related to the age of the foetus. The testimony for the State established- positively that it was quick. The flow in November was shown to havе been caused by drugs. The defendant himself offered in evidence a letter written to him in November, in which the young woman stated that she had been pregnant about three months and was growing stout. The operation was performed two months later. There was no error in refusing to grant the new trial.
Judgment affirmed.