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44 Ga. 209

Powers v. State

Supreme Court of Georgia

Decided July 15, 1871

Supreme Court of Georgia · decided 1871-07-15

<p>1. The offense of incestuous fornication is not a joint offense under section 4459 of our Revised Code, and one person may be indicted and found guilty thereof.</p> <p>2. Where, on a trial for incestuous fornication of A with his sister, the sister was introduced as a witness, and on cross-examination she denied that one Powers (her brother-in-law,) had sued the defendant in her name, and the Court permitted proof to be made that a suit was pending in her name by Powers as her next friend, but refused to permit the declaration and accompanying papers to be read to the jury :</p> <p>Held, That this was not error, as the contents of the paper were not material to the issue, which was simply whether or not a suit had been brought by Powers in her name.</p> <p>8. When a written request was made by the defendant’s counsel to the Judge to charge the jury, which request covered the whole case, and the Judge in his charge failed to follow the language of the request, but charged the law properly upon the points made, and upon the whole case, and the defendant was found guilty:</p> <p>Held, The section 8664 of the Code, providing that a new trial may be granted on the refusal of the Judge to charge a pertinent charge in the language requested in writing, is not mandatory, but permissive only ; and when the Judge has, in fact, charged the language correctly on the points covered and upon the whole case, and has refused a new trial, this Court will not, for this reason only, grant a new trial.</p> <p>4. No precise rule can be laid down here, for the evidence of an accomplice in a felony must be corroborated by another witness, or by circumstances ; but a defendant cannot complain of the charge of the Judge on this point who tells the jury that the evidence of the other witness, or the corroborating circumstances must be sufficient to satisfy them beyond a reasonable doubt of the guilt of the prisoner.</p> <p>5. In this case, while we are not entirely satisfied with the verdict, yet, as the case turns mainly upon the credibility of the witnesses — -a matter specially within the province of the jury — and as the Court below has refused a new trial, we do not think it our duty to interfere with bis judgment.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1871-07-15

How this case has been cited

Cited by 9 later decisions — most recently March 1987

9 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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McCay, Judge.

¶11. Nothing can be plainer than that the crime of incestuous fornication is, by our statute, not a joint offense. The words are, “any person, who shall commit incestuous fornication.” By what rule of construction this can be made to mean, “ if any two persons shall,” etc., we are unable to see. The very next section of the Code, section 4460, punishing fornication and adultery, does make a joint offense, and uses very different language. “ Any man and woman who shall,” etc. It is hardly supposable that language so different should be used in almost the same sentence without a special intent. And there is great propriety in the distinction. The unnatural crime, prohibited in section 4459, as experience shows, is generally the act of a man upon a woman, over whom, by the natural ties of kindred, he has almost complete control, and generally he alone is to blame. There is a force used, which, while it cannot be said to be that violence which constitutes rape, is yet of a character that is almost as overpowering. Indeed, if it were necessary to make out a case of mutual consent, (and without this there is no joint offense,) we think but few cases of this unusual crime would be punished.

¶22. The only statement of the witness that made the proof *215of the pendency of the suit, in the name of the witness, by her brother-in-law, as her next friend, evidence at all, was that no such suit had been brought; that there was a suit in her own name, and not brought during her infancy. The proof of the pendency of the suit contradicted her statement, and the contents of the paper would have added nothing to the evidence contradieting the witness.

¶3Nor was it a matter of much moment any way. She was, in fact, the plaintiff, and it would be a very harsh construction to hold her to have sworn falsely, because she did not know that her brother-in-law’s name was used as her next friend.

¶43. The request to charge is not specially objectionable, save that it proposes to do a good deal more than is necessary to get the law to the jury. The illustrations it gives are, doubtless, true, and its distinction between civil and criminal cases is not illegal. But the charge of the Judge, as given, covers all the points made in the request, and is a fair and just explanation of the law to the jury. A refusal by the Judge to give in charge to the jury a pertinent legal written request is, by section 3664 of the Code, a ground for a new trial. But it is not error per se; as though he had expressed an opinion as to what was proven. A new trial may be granted for the error. It stands., therefore, like other errors. If they be material a new trial will be granted. But if they be immaterial this Court will not play at justice by making them material, and granting new trials for their correction. As we think no harm was done, and the prisoner lost nothing but the language of his counsel, we will not, for this reason, hold that the Judge ought to have granted a new trial.

¶54. The law does not and cannot lay down any rule to measure the extent of the corroboration necessary to support the testimony of an accomplice in a felony. The statute says, section 3702, in effect, that there must be another witness or corroborating circumstances. In this case there were many corroborating circumstances. The girl had a child, *216the parties were living alone in a house with but one room ; they had been seen under circumstances indicating an intention on his part to commit this crime, if he could, and the Judge was very favorable to the prisoner — more so, we think, than strict justice required, when he told the jury that the additional witness, or circumstances of corroboration, must be such as to satisfy them beyond a reasonable doubt that the prisoner was guilty.

¶65. The evidence was pretty strong, going to discredit both of the witnesses, and we incline to think the preponderance was against them. But the credibility of witnesses is specially matter for the jury, and we are all aware how female witnesses are disposed to visit their direct condemnation upon a sister’s fall. We do not feel it to be within our province to interfere in a case turning so completely upon the credit to be given to the witnesses as this. The mode of testifying— the tone — the look — the emphasis, given to words and that judgment of a witness which can only be formed upon what occurs, that cannot be reduced to writing, were all before the jury, and are not and cannot be before this Court.

¶7Judgment affirmed.

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