Jones v. State , 90 Ga. 616 ( 1892 )

Lumpkin, Justice.

1. Before the trial began, the accused moved for a continuance. While the motion was being argued, one Mrs. N. C. Kuight, a witness for the accused, stated under oath what she expected to testify on the trial; and one J. M. Byrd, a witness for the State, stated on oath what his son, H. M. Byrd, a witness for the defense, told him he would swear. The record affords no information whatever beyond what has just been recited as to the statements made by the witnesses, Mrs. Knight and Mr. Byrd; but the accused challenged the array of jurors put upon him, on the ground that they were in the court-room and heard these statements. We are utterly unable to perceive any merit in this ground of challenge, since it contains not even the slightest intimation as to how .the accused could have been injured by what had occurred; but even if the statements referred to had been fully set out in the exception to the action of the court in overruling this challenge to the array, and were of such a character as to indicate guilt on the part of the accused, the mere fact that it was heard by gentlemen in the court-room who afterwards constituted, in whole or in part, the panel of forty-eight jurors put upon the prisoner, would be no ground of challenge to the array. If any of the jurors, by reason of hearing the statements, were disqualified from trying the case, the proper-way to object to them would have been by challenges to the polls.

Again, the accused complains that his counsel were not allowed to ask the jurors, as they were put upon him one at a time, if they heard the statements made by Mrs. Knight and Mr. Byrd when introduced as witnesses on the showing for a continuance. The record being silent as to the nature of these statements, and this court consequently being unable to conjecture what effect, if any, they may have had upon the jurors’ minds, we can see no error in the refusal of the court to allow the proposed questions to be asked. As matter of right, the accused could ask the jurors only the questions prescribed in section 4682 of the code, and this right was not denied him. If a juror is put upon the court as a trior, the examination may be extended, but this was not done in the present case.

2. Sexual intercourse resulting from seduction must necessarily be committed and accomplished with the consent of the female. This is an essential and indispensable element of this particular crime. Rape being the carnal knowledge of a female forcibly and against her will, necessarily implies the entire absence of consent on her part. It follows, plainly enough and without argument, that a rape cannot be made the basis of a prosecution for seduction. The two offences are so totally different, they cannot be confused, nor can one of them by any possibility, legal or otherwise, be substituted for the other. People v. Brock, (Mich.) 31 N. W. Rep. 585. While this is manifestly true, it can scarcely be doubted that no modest girl or woman, upon the occasion of her first carnal contact with a man, will readily submit to the intercourse without some reluctance and some show of resistance. The extent to which this resistance will go depends largely, we presume, upon the nature, education, surroundings and previous associations of the female. We imagine it would be very difficult indeed to find a virgin of any age who would boldly and without shame or hesitation indulge for the first time in the sexual act; and while she may consent to it, it is perfectly natural to expect a greater or less degree of reluctance on her part. Indeed, it is easy to imagine that a woman may yield herself to the sexual embraces of a man when the act is absolutely repulsive to her, and offends, in the highest measure, her every sense of delicacy. The coyness, shyness and modesty which actuate a virtuous woman on such an occasion naturally find expression in the manifestation of some degree of unwillingness, or of an endeavor, feeble though it may be, to shield herself from that to which she is averse, but to which she really consents only for the sake of the man she loves and trusts. It would be mere mawkishness, to affect ignorance of these well-known traits of female character. It is our duty to deal plainly and fairly with the questions made in this case, and this is impossible unless we recognize the existence of those principles of human nature, which are universally understood, and which are applicable to the facts' presented. Pursuing this course, it is safe to say that females possessing any degree of modesty shrink from the first act of sexual intercourse. This, we apprehend, is true even of those having passionate natures, for Byron wrote :

“ But who, alas! can love and then be wise?

Not that remorse did not oppose temptation,

A.little still she strove, and much repented,

And whispering, ‘t will ne’er consent’ — consented.”

And in the famous speech of the great Erskine, in Howard v. Bingham, he drew a picture of a “ charming woman, endeavoring to conceal sensations which modesty forbids the sex, however enamoured, too openly to reveal, — wishing beyond adequate expression what she must not even attempt to express, and seemingly resisting what she burns to enjoy.”

That a woman exhibits hesitation, reluctance and a slight degree of physical resistance does not, by any means, make the intercourse, when accomplished, rape. See State v. Horton, (N. C.) 6 S. E. Rep. 238; State v. Strattman, (Mo.) 13 S. W. Rep. 814. The evidence in this case shows beyond doubt that Miss Smith, on the occasion when she first had sexual intercourse with the accused, really consented to the act, and that he did not then, nor at any other time, have carnal knowledge of her by force. On cross-examination she did use some expressions tending to show a want of consent on her part, and from which it is sought to draw the inference that the- connection was had by force and violence and against her will; but the only fair and reasonable conclusion from her testimony is that she yielded to the wishes of the accused, and this is doubtless the truth of the case. See in this connection the pertinent language of Sherwood, J., in the Strattman case supra, on page 817. The little resistance, she made was the outcome of her maidenly modesty, and was of the kind we have endeavored to describe. She exhibited in testifying'the same sort of hesitation to confess her disgrace she had shown in consenting to the act by which it was accomplished. Even if the first sexual contact between the accused and herself had amounted to a rape, and he had afterwards, by persuasion and promises of marriage, obtained her free consent to. have intercourse with him, and thus seduced her, he would be guilty of the crime of seduction. A virtuous woman upon whom the crime of rape has been committed does not thereby lose her virtue; and if unmarried, there is no reason why she may not afterwards become the victim of seduction by her ravish er.

8. There was no error or impropriety in the court’s reading to the jury section 4371 of the code, which defines the offence for which the accused was on trial. It is true the indictment alleged the seduction was accomplished only by persuasion and promises of marriage, and did not charge that any other false and fraudulent means were used by the accused; but the court took pains to so insti’uct the jury, and distinctly explained to them that the State relied for conviction upon proof of the latter alone.

4. The motion for a new trial sets forth at great length numerous extracts from the charge of the court (which will be found in the reporter’s statement), and complains that they are erroneous. These extracts are substantially the same, in effect, as the rulings made by this court in the case of Wilson v. State, 58 Ga. 328, and O'Neill v. State, 85 Ga. 383. The present Chief Justice delivered the opinions in both of those cases, and with great care dealt with and discussed the legal questions involved, they being quite similar to those made in the ease at bar in the several exceptions to the court’s charge. It is unnecessary to repeat or to comment upon what he so clearly and forcibly expressed in the cases cited; we adopt what is there said as sound law.

5. The evidence adduced on the trial of this case shows that Miss Smith was a modest, gentle, tenderhearted and confiding young girl; that from her childhood she had learned to love and trust the accused with all the fondness of her heart, and that he repaid her tender confidence and implicit faith by blasting and ruining her young life. The sad and simple story contained in her evidence, of the cruel wrong inflicted upon her, by its own eloquent pathos, will convince the mind of any candid reader that she yielded her virtue, under the persuasions and promises of the accused, for the sake of her love, and that the slight resistance she offered when the criminal intercourse first occurred was but the last despairing and feeble effort of a maiden’s inborn modesty to save herself from disgrace and shame. The following brief extract from her testimony presents the case with painful and touching clearness : ■ “ I just yielded to him by loving him ; I told him if he would marry me, I would yield to him ; he told me he would, and I yielded to him by my love.” While there is not evidence, in so many words, that persuasion as well as promises of marriage was used to accomplish the seduction, the circumstances detailed are ample to warrant the inference that persuasion, even to importunity, was resorted to in order to gain consent. The accused, with utter selfishness, ruined this unfortunate young woman and left her to her fate. Doubtless remorse has already overtaken him. Be this as it may, it was'but just that the strong hand of the law should be laid upon him; and in the light of this record, we sanction the verdict of the jury and the judgment of the court, which for the time being, at least, makes the way of this transgressor hard. Judgment affirmed.