19 Ga. App. 104 | Ga. Ct. App. | 1917
It is unnecessary to discuss any ground of the motion for a new trial except the particular ground upon which the lower court is reversed; and no extended discussion of that ground is required, in view of the ruling made by the Supreme Court upon the abstract question decided by that court in this case, and left for application by the Court of Appeals.
The precise question submitted to the Supreme Court, with the answer made thereto by a majority of that court, was as follows: "In the trial of a case of seduction, was the following charge to the jury error because it tended to discredit in the minds of the jury the defense interposed by the prisoner that the woman he was charged with seducing was not a virtuous female, or because it contained an intimation by the court that the facts sought to be proved by the defendant constituted no lawful defense, .but amounted only to an effort on his part to Tlaeken and blackball the character of his alleged victim;’ or was this language of the
It will appear, from an examination of the foregoing question and answer, that the Supreme Court ruled upon the abstract point involved, and held definitely “that the excerpt from the charge quoted in the above question is erroneous for the reasons stated,” which includes all the reasons stated or suggested in the question; but left it open for this court to determine whether or not the error was cured elsewhere in the charge, or whether the evidence as a whole was such as to avoid the necessity of a new trial on account of this error—or in other words, whether under a review of the entire case the error was harmful to the accused.
Elsewhere the court charged the -jury as follows: “A virtuous unmarried female in the meaning of the law is one who at the time of the alleged seduction has never previously had unlawful sexual intercourse with a man. An unmarried female who is a virgin is virtuous, but if she with her consent unlawfully parted with her virginity she is not virtuous. The test by which a jury are to determine whether the female alleged to have been seduced was virtuous at the time of the alleged seduction is physical purity and.not moral chastity. In the present case you are to consider and determine whether or not Euby Green [the woman alleged to have been seduced] had parted with her virginity, that is, whether she had had sexual intercourse with any man prior to the alleged seduction.” The court further charged that “The presumption of the law in this case is that Euby Green prior to the date of the alleged seduction by the defendant was a virtuous woman. The
While the above-quoted excerpts in a general" way authorized the jury to consider any evidence showing immodest, lewd, or lascivious conduct on the part of the prosecutrix in determining whether or not she was in fact, at the time of the alleged seduction, a physically chaste woman, the court followed up these general references to the circumstantial evidence which the jury might consider in arriving at such a conclusion (in the absence of direct proof of physical unchastity on her part before the time of the alleged seduction), with the following specific instruction directly relating to what was virtually the only defense interposed by the accused, to wit: “The proof of lascivious indulgences and wanton dalliances with other evidence short of direct proof of the overt act may authorize the jury to infer actual guilt of the illicit act, but it is not a lawful defense for the accused to Macicen or blaclcball the character of his alleged victim by proving loose declarations or showing impi'udent or immodest conduct on the part of the woman he is accused of seducing. [Italics ours.] He must go further and prove that she had lost her personal chastity prior to his alleged seduction of her, or he must prove such facts as, under the law, would raise a violent [italics ours] presumption that she had done so; such facts as would, under the law, authorize the jury to find that she had had sexual intercourse with a man before the alleged seduction.”
The previous references by the court to evidence which might tend to show immodest, lewd, or lascivious conduct on the part of the prosecutrix anterior to the date of the alleged seduction were general in their nature, as was also the particular instruction quoted above, that “proof of' lascivious indulgences and wanton dalliances with other evidence short of direct proof of the overt act may authorize the jury to infer actual guilt of the illicit act;” whereas the further instruction, that “it is not a lawful defense for
It is clear, therefore, that the charge of the court did not correct the harmful error contained in this excerpt, which reflected on the value of the testimony offered by the accused as a foundation for the inference he sought to have the jury draw that the prosecutrix was physically unchaste at the time of her alleged seduction, because of previous sayings and conduct totally irreconcilable with the belief that she was even physically pure. No extended review of the evidence is necessary to demonstrate that the reference by the court to the testimony of the accused which was offered to show that the conduct of the j>rosecutrix was of such a character as to support a legitimate inference to be drawn by the jury that she was in fact a lewd woman could have been harmless to the accused, in the light of the entire record.
One charged with the offense of seduction is from the outset placed at a decided disadvantage, because the very nature of the crime usually precludes the possibility of knowledge on the pari of any person, other than the accused and the prosecutrix, as to the time and manner of its consummation. Unless the defendant is so fortunate as to be able to show beyond all possibility of question that he was not in the society of the alleged victim at or about the time fixed by her, or else can show it was physically impossible for him' to commit the crime charged, he must generally depend for any effectual defense upon direct proof that his alleged victim was not physically ehaSte at the time he was charged with seducing her, or proof that her acts and conduct had been so immodest and lascivious as to compel the inference (in the absence of direct proof of the fact) that she was in truth a lewd woman. It is well-nigh impossible as a rule to establish by direct proof that another man has had intercourse with the professed victim of the accused, for generally the other men involved are not easily to be discovered, nor are they ready to admit their own lascivious • conduct or to assail the character of a woman who has bestowed her favors upon them, and seldom is it the case that a third person witnesses the performance of such an act. It is usually done in
Any comment on the evidence would be improper, in view of the fact that the case must be retried. It is enough to say that the defendant was charged with the commission of the crime by
Under the ruling by the Supreme Court, the excerpt from the charge of the court touching the value of the testimony under discussion must undoubtedly have conveyed to the jury an intimation that in the opinion of the trial judge the facts which the defendant sought to prove constituted no lawful defense, but amounted to an attempt by him to besmirch the character of his alleged victim, and the language of the court was calculated to suggest strongly to the minds of the jurors that the defendant was engaged in an unmanly attack on the reputation of a woman not shown to have parted with her virtue, thereby exciting their prejudices against the defendant and seriously discrediting the defense interposed by him.
It is true, as held by this court in Hays v. State, 16 Ga. App. 20 (7), 21 (84 S. E. 497), that, “under the law in Georgia a woman is a virtuous female if her body be .pure; and if she has never had sexual intercourse with another, he who first has sexual intercourse with her may be guilty of seduction though both her mind and heart be impure;” but the particular instruction in this case, in the light of the evidence, and taking into consideration .the charge as a whole, must undoubtedly have minimized the effect of the testimony relating to alleged improper conduct on the part of the prosecutrix which was presented to support an inference that she was not merely debauched in mind, but unchaste in body, and must have conveyed to the jury a very strong intimation that in the opinion of the judge the evidence referred to was wholly insufficient to support any such inference.
The judgment of the lower court, overruling the motion for a new trial, is therefore
Reversed.