Washington v. State

Fish, C. J.

Jeffie Washington was convicted of the crime of seduction, and brought the- case here for review, by excepting, to the overruling of his motion for a new trial.

1. “The victim of a seduction is not an ‘accomplice’ to the offense committed, in the sense in which the word just quoted is used in* the Penal Code, §991, requiring the testimony of at least two witnesses to convict of a felony, or corroborating circumstances, ‘where the only witness is an accomplice.’ ” This ruling was made by a full bench in Keller v. State, 102 Ga. 506. In the present case leave was granted to review that decision, but, upon a careful re-examination of the question, we are thoroughly satisfied of the correctness of the ruling then made, and now adhere to the same. In addition to what was said on the subject in the Keller case, it is very clear to our minds that when the crime of seduction is committed, the woman who is seduced and induced to yield to the lustful embraces of the man, by his persuasions and promises of marriage, or other false and fraudulent means employed by him, is not an accomplice to the crime, but obviously a victim of the seducer. We do not see how she can be an accomplice in a crime the very gist- of- which consists in persuasions and promises, or other false and fraudulent means, directed against herself. Can she plot and plan, persuade and promise, for the purpose of overcoming her own will'and accomplishing her own ruin? Can she employ false and fraudulent means upon herself ? Clearfy, as to the crime of seduction, she can not be an accomplice. The statutes of some of the States in reference to the crime of seduction contain a provision that a person can not be convicted of this offense upon the uncorroborated testimony of the woman who is claimed to have been seduced. 25 Am. & Eng. Ene. L. 243. The authority cited by the plaintiff in error, to the effect that the testimony of the woman alleged to have been seduced must be corroborated, is the decision of a court in a State where the statute so requires. ' There is no such statute in this State.

2. The court instructed the jury as follows: “The State is not confined to the day named in the indictment, necessarily; but if the State has shown to your satisfaction that he seduced her, that she was a virtuous, unmarried female, and that it was in this county within four years prior to the finding of the indictment, and that he seduced her by persuasions and promises of marriage to ’ yield, to bis lustful embraces and let him have carnal knowledge of her; if the State has shown this to your satisfaction, you should find him guilty of seduction.” The error assigned upon this instruction is, that it did not inform the jury “what should constitute satisfaction or what amount of proof would create a state of mind and conscience covered by the word ‘satisfaction/ or to what extent the evidence should go to bring the mind of the jury to the state of satisfaction.” There is no merit in this exception. It appears from the charge of the court in the record that the jury were fully and correctly instructed’ as to the presumption of the innocence of the accused, the burden upon the State to prove his guilt to the moral and reasonable satisfaction of the jury and beyond a reasonable doubt, and as to the meaning of a reasonable doubt. In view of these instructions, the jury evidently must have understood the court’s use of the words “to your satisfaction” to mean to their satisfaction beyond a reasonable doubt. The court having fully instructed the jury as to the degree of conviction of the guilt of the accused which the evidence must produce in their minds before they would be authorized to convict him, the jury were obliged to understand, when the court charged them that certain things must be shown to their satisfaction before they could convict, that the proof in reference thereto must produce this requisite degree of mental conviction before a verdict of guilty could be rendered.

3. The court instructed the jury that it was a question for them to determine, from the evidence submitted, whether the woman alleged to have been seduced was virtuous at the time of the alleged seduction, “that is, had she at that time had sexual intercourse with another man? If she had, she was not a virtuous woman; if sha had not, she was a virtuous woman.” This charge was excepted to on the ground that it confined the jury to a consideration of her physical chastity, and eliminated all consideration by the jury of any fact or circumstance tending to show her want of moral chastity. This exception was not well taken. The court, in this instruction, was giving to the jury the legal meaning of the expression “a virtuous . . female,” as applied to a woman who' had -never married, in reference to the crime of seduction, and the definition given was substantially correct. The general rule is that “unmarried females who are virgins are virtuous; and those who, by their own consent, have ceased to be virgins, are not virtuous.” O’Neill v. State, 85 Ga. 383, 407-8. “The jury should treat [the woman alleged to have been seduced] as virtuous unless the evidence, direct or circumstantial, should satisfy them that she had lost her virtue, by having illicit intercourse.” McTyier v. State, 91 Ga. 254. The court charged the jury that they were to determine the question whether the woman was virtuous at the time of the'alleged seduction, from the- evidence submitted. This included the evidence of want of moral chastity, if, indeed, there was such evidence, as well as all the other evidence submitted. It is true that if there be evidence of want of'moral chastity of the female alleged to have been seduced, it may be considered by the jury on the question whether she, though a virgin, was really seduced, or whether she shared the illicit intercourse for the gratification of lascivious propensities, not inflamed by the arts or im-portunities of the accused (O’Neill v. State, supra); but if the' court, in such a case, should fail to instruct the jury that they might consider such evidence for the purpose indicated, the accused should make a timely and appropriate request that such instruction be given.

4. Another instruction to the jury which is excepted to was: “If you should not be satisfied that, the defendant is guilty of the offense' of seduction, but are that he was guilty of sexual intercourse with the woman, you could then find him guilty of fornication if both were unmarried at the time the intercourse took place, if you find it took place at all. If you are satisfied-he is guilty of fornication, you should find him guilty. If you are not satisfied he is guilty of fornication, you should acquit him.” One error assigned upon this charge was, that it failed to differentiate fornication from seduction, and that “the court should have charged the jury that if the woman yielded to defendant, in response to her lustful desire, or if she did so simply because defendant promised to marry her without more, it would have been fornication.” Another error assigned is, that the effect of this charge was to instruct the 'jury that if they were satisfied that the accused was guilty of fornication, they should find him guilty of seduction. The court more than once, in the charge to the jury, had fully and correctly instructed them as to the essential elements of the offense of seduction, and the charge now under consideration, in effect, defined the offense of fornication. If the accused desired a more specific charge as to the offense of fornication, it should have been properly requested. The instruction, that if the jury were satisfied that the accused was guilty of fornication, they should find him guilty, could not have been understood by the jury as meaning that if they were thus satisfied they should find him guilty of seduction; for this instruction immediately followed the charge, “If you should not be satisfied that the accused is guilty of the offense of seduction, but are that he is guilty of sexual intercourse with the woman, you could then find him guilty of fornication, if both were unmarried at the time the intercourse took place.” The meaning of the instruction excepted to in this assignment of error was clear from the connection in which it was given, and the jury could not have been misled by it.

5. Error was assigned upon the following excerpt from the charge of the court: “Arrive at your verdict solely from the evidence and the law, and by nothing else.” The exception was that this excluded from the jury all consideration of the defendant’s statement, especially as no instructions were given as to the statement of the accused until at the close of the judge’s charge. This excerpt from the charge should be considered in the connection in which it was given. The court instructed the jury to “take the evidence in the case and find what the truth of this transaction is; and when you find it let your verdict speak the truth. Arrive at your verdict solely from the evidence and the law, and by nothing else. Let no outside circumstances influence you in the least, but take the 'case and consider it as honest, conscientious jurors, and find the truth.” So considered, the excerpt was not erroneous, especially in view of the often-repeated rule that “The general tenor of the charge of the court on the trial of a criminal case should be shaped by the evidence alone and the law applicable thereto, adding, or at some stage of the charge incorporating, the statutory provisions touching the prisoner’s statement.” Hays v. State, 114 Ga. 25, and cit.; Foskey v. State, 119 Ga. 72.

6. There was no merit in an exception that the judge did not instruct the jury in reference to the prisoner’s statement until after the rest of the charge had been given. The fact that these instructions were given at the conclusion, instead of elsewhere in the charge, is not ground for an exception.

7. On the cross-examination of the woman alleged to have been seduced, counsel for the accused asked the following question: “Don’t you remember writing a letter in which you stated he had not given you the ring?” She answered, “No, sir.” Upon objection by the solicitor-general this answer was excluded, unless the letter should be exhibited. No letter was shown to the witness. She, on direct examination, had testified that the accused had given her a ring. The evident purpose • of defendant’s counsel was to lay the foundation for impeaching the witness by proof of a contradictory statement made in writing. The rule is that before a contradictory written statement can be proved against a witness, unless it be a written statement made under oath in connection with some judicial proceeding, it must be shown to him, or read in his hearing, if in existence. Penal Code, §1026. The ruling of the court was, therefore, not erroneous.

8. Nor did the court err in allowing, over the objection of the accused, the woman alleged to have been seduced to testify that her love for the accused caused her to yield to the intercourse. The objection urged was that it was for the jury to determine from the facts why she so yielded.

9. Prior to the trial of-the case on its merits, the accused filed an original and an amended plea in abatement, to which his signatures were attached. The court passed on these pleas. During the trial of the case on its merits, counsel for the accused, during his argument to the jury, undertook to use the signatures to such pleas for the purpose of comparing them with a letter which had been introduced by the State, purporting to have been written and signed by the accused, and to show by such comparison that the letter and the signature thereto were not in his handwriting. The court refused to allow defendant’s counsel to make such use of the signatures to these pleas, because they were not such parts of the pleadings as could be so used without being introduced in evidence. There was no error in this ruling. The issue raised by these special pleas had been disposed of, and they were no part of the pleadings in the issue before the jury. They were in no sense before the jury, and could not be unless they had been introduced as evidence.

10. Another ground of the motion for a new trial was, that during the argument for the State the woman alleged to have been seduced sat in the-presence of the jury and wept. The court-certifies that counsel for the accused saw and heard this, but raised no objection to it. We do not think such conduct of the woman cause for a new trial, especially as counsel for the accused made no objection to the same, and did not request the court to take any action in reference to the matter. This court has frequently held that where counsel make unauthorized and improper remarks in their arguments before juries, opposing counsel should call attention to the same, and either move for a mistrial or request the court to instruct the jury to disregard such statements. Bowens v. State, 106 Ga. 764, and cit. “The failure of the court to interpose of its own motion in a case of impropriety in its presence will not generally be a sufficient reason to set aside a verdict at the instance of a party, when no objection to the impropriety was made pending the trial, and no ruling in reference thereto was invoked from the court.” O’Dell v. State, 120 Ga. 152(5). So where the disqualification of a juror was known to the accused before the jury was sworn, it is no cause for a new trial. Keener v. State, 18 Ga. 194; Cohron v. State, 20 Ga. 752. So where one of the jurors was asleep during a portion of the trial, this was held not to be ground for a new trial, unless it affirmatively appeared that the accused and his counsel did not know of this circumstance before the jury retired to make a verdict. Cogswell v. State, 49 Ga. 103. In State v. Laxton, 78 N. C. 564, it appeared that during the trial of one accused of rape certain members of the family of the prosecu-trix sat within the bar of the court, and occasionally wept during the argument of the State’s counsel and withdrew when the prisoner’s counsel began to address the jury. No complaint was made or objection offered during the trial: It was held that the failure of the judge to restrain such conduct was not cause for a new trial.

11. Evidence as to the good character of the accused, offered after verdict, to support a motion for a new trial, is not cause for granting such motion.

12. On the hearing of the motion for a new trial, movant put in evidence the affidavits of certain persons to the effect that they knew the handwriting of the accused, and that since the trial they had examined a letter introduced by the State on the trial, purporting to have been written-by him to the woman alleged to have been seduced, and that such letter and the signature thereto were not, in their opinion, in his handwriting. The evidence of such witnesses was nowhere referred to in the motion for a new trial, and, therefore, could not be considered by the court.

13. On the hearing of the motion, the movant submitted other affidavits containing alleged newly discovered evidence, which, how- . ever, were merely cumulative or impeaching in their character, and all of which were contradicted by affidavits introduced by the State. The trial judge passed upon this alleged newly discovered evidence in view of the contradicting affidavits submitted by the State, and either considered it unworthy of belief, or as not of such a character as would likely produce a different result on another trial. It is well settled that alleged newly discovered evidence of this •character is not generally cause for a new trial, even where it is uncontradicted; and it is perfectly clear that where it is contradicted by evidence introduced by the State on the hearing of the motion, there is no abuse of discretion in refusing to grant a new trial upon the ground of the existence of such evidence and its discovery” since the rendition of the verdict.

14. The motion for a new trial alleged that since the conviction of the accused he had received, by due course of mail, a letter purporting to have been written and signed by the woman alleged to have been seduced, in which it was stated that he was not guilty of seducing her, but another named person was; that she had heard that the accused had been granted a new trial, and if he would send her one hundred dollars, she would leave the country and stop the trouble. Affidavits of several persons were submitted by the movant, to the effect that the affiants saw him receive this letter; that they were acquainted with the handwriting of the woman, and the letter and signature thereto were in her handwriting. The State submitted the affidavits of several persons, to the effect that they knew her handwriting and that she did not write and sign this letter, also her affidavit that she did not write the letter. Even granting that she wrote such a letter, it was not cause for a new trial. Evidence that a State’s witness, since the trial, has made declarations, even under oath, that his testimony given upon the trial was false, is not cause for a new trial. Jordan v. State, ante, 417, and cit.; Civil Code, § 5366.

•15. We have carefully scrutinized the evidence submitted by the • State on the trial; and while the testimony of the" woman alleged to have been seduced was self-contradictory as to the month when she claimed to have been seduced, she was at all times positive as to the place where the seduction occurred, and that the offense was committed in the summer of a given year. The jury were the judges of her credibility, the trial judge approved the verdict, and this court can not say that he committed error in so doing.

Judgment affirmed.-

All the Justices concur, except Beclc, J., disqualified.