Burk v. State

BRICKEN, P. J. The defendant was charged with, and convicted of, seduction. This offense is strictly statutory, resulting, therefore, that the terms of the particular statute in question must govern and control a charge of this character. [1] The section of the Code under which this charge was preferred by indictment is as follows: “Any man who, by means of temptation, deception, arts, flattery, or a promise of marriage, seduces any .unmarried woman in this state, must, on conviction, be imprisoned in the penitentiary for not less than one nor more th.an ten years; but no indictment or conviction shall be had under this section on the uncorroborated testimony of the woman upon whom the seduction is charged; and no conviction shall be had if on the trial it is proved that such woman was, at the time of alleged offense, unchaste.” Section 7776. By the express terms of this statute no indictment can be preferred or a conviction had upon the uncorroborated testimony of the woman upon whom the seduction is charged, and in construing this provision of the statute the settled rule seems to be that the corroboratory evidence exacted by the statute is sufficient if it extends to a material fact, and satisfies the jury that the woman is worthy of credit. 1 Mayfield, Dig. pp. 799, 67. [2] In the instant case the prosecutrix testified to a promise of marriage made to her by defendant, and to the subsequent sexual intercourse between them on two separate occasions. It follows, therefore, that if the rule above cited as to corroboration of her testimony has been met, the question of the guilt or innocence of the accused became a matter for the determination of the jury. For, even if corroborating evidence had been adduced, and the terms of the statute as to this prerequisite had been met, the court would not be authorized in holding that such corroborating testimony was sufficient. Its truth and weight was for the jury, and evidence may be sufficient to meet the statutory requirement as to corroboration, and yet not sufficient to satisfy the jury beyond a reasonable doubt that the woman swore truly. For, even if the additional rule of evidence required by this statute— i. e., evidence of corroboration — is met, it cannot be taken to modify or change the well-settled rule of law in all criminal cases to the effect that the presumption of innocence of the accused must prevail until his guilt is proven beyond a reasonable doubt and to a moral certainty. [3, 4] To the end of determining this most material and pertinent question we have very carefully considered all of the testimony offered upon the trial of this case, and more especially the evidence adduced by the state, and have reached the conclusion that the case rested, as to all material facts, solely upon the testimony of the prosecutrix, and that there is an entire absence of any testi [415] mony to corroborate her as required by the well-settled rule so often announced. The prosecutrix, her mother, and her father were the only witnesses examined by the state and upon whom the state necessarily relied for a conviction, and the testimony of the mother and father was to the effect only that the defendant had visited their daughter upon several occasions, and that she gave birth to a child at the time stated. The mother and father of the prosecutrix could testify to no fact the tendency of which would be to corroborate the prosecutrix upon the question of a promise of marriage or as to the defendant having had sexual intercourse with her. Their sole knowledge upon this question was derived from the statement made to them by their daughter, the alleged injured party. And in this connection we are of the opinion that the court committed error in allowing the state witness Mrs. Sallie Blanchard to testify as to a conversation between witness and the prosecutrix in October. The defendant was not present at the time of this conversation, and the objection to the question should have been sustained. The motion to exclude should have been granted. In the entire record there is a total absence of any testimony, except that of the prosecutrix, first, as to a promise of marriage, and, second, as to the defendant’s alleged intercourse with prosecutrix; thus the case must fall, it being apparent that the terms of the statute have not been met. It is, of course, a self-evident fact that the woman in question has had sexual intercourse with some man, because of the Dirth of the child; but there is no evidence to corroborate her testimony that the defendant is the man. And¡_ however weak and inconclusive it may appear, the only testimony in the whole record, other than her own, as to her having sexual intercourse with any one, is that Of a witness for defendant who testified that he saw her one night near the side of the road in the act of sexual intercourse with a man other than the defendant. There was some evidence that this defendant went to a distant state, and as stated by him, to secure employment. But the fact that at the time he left no charge had been preferred against him nor, accusation made, nor did the prosecutrix tell him of her condition before he left, coupled with the further fact that he voluntarily returned home to the same community just a few days prior to the birth of the child and mingled openly with the people of that community, successfully refutes to our mind any question of flight on the part of defendant, and was in accord with the other conduct of this defendant as shown by the record, from none of which can it be deduced that he at any time manifested any consciousness of guilt in connection with the accusation finally lodged against him. There are several rulings of the court upon the testimony insisted upon as being erroneous. From what has been said it is not deemed necessary to discuss these rulings. The general charge requested in writing by defendant should have been given. Leslie Whatley v. State, 94 South.-. Reversed and remanded. Footnotes [1] <ga=>For other cases see same topic ana KEY-N ÜMBER in all Key-Numbered Digests and Indexes [2] <§ssjFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes