Glover v. State , 15 Ga. App. 44 ( 1914 )

Wade, J.

(After stating the foregoing facts.) 1. It appears to us that the evidence was not sufficient to exclude every reasonable hypothesis inconsistent with the guilt of the accused. The evidence for the State might raise a very strong suspicion that the crime of adultery was at least in contemplation by the parties charged therewith, but, on the other hand, it is just as reasonable to conclude from that evidence that the crime was not actually consummated, and that Mrs. Gilbert’s arrival on the scene interrupted and prevented the criminal act. While, from an ethical standpoint, a mutual agreement of a married man and a married woman to have illicit intercourse would make each as guilty morally as if this intention were physically consummated, the law is constrained to deal only with actual overt acts in such matters, and, unless sexual intercourse actually occurred, neither of the parties could be punished under a statute penalizing adultery. As was said in the case of Long v. State, 5 Ga. App. 176 (62 S. E. 211) : “The circumstances are such as to raise, perhaps, a violent suspicion; but this is all. From the proved facts the inference is as likely that the parties were about to commit the offense alleged in the accusation, and were prevented by the arrival of [another person] as that the act had already been consummated.” In this case, while the impress on the pile of seed-cotton in the smoke-house is suggestive, and the facts that locks of seed-cotton were entangled in Mrs. Densmore’s hair bn the back’ of her head, and that the defendant Glover came hurriedly out of the smoke-house and went rapidly away without a word of explanation or even of salutation, and the embarrassment displayed by Mrs. Densmsore, all excite a lively supposition as to the purpose which had drawn the pair into the smokehouse and caused the closing of the door, still it does not appear how long these parties had remained in the smoke-house, and for aught the evidence discloses, they may have just entered it the moment before the welcoming call of the little child to Mrs. Gilbert alarmed them and caused them both to come forth; and there is no proof of bad character of the woman, to give rise to any inference of improper conduct on this occasion.

Mrs. Gilbert testified that she approached the building from behind the smoke-house, and could not testify that the parties accused were both in that house during any specific length of time. From her evidence the parties may or may not have consummated the crime of adultery before she arrived at the smoke-house; the one conclusion is just as reasonable as the other; and since the conviction depended on the circumstances proved, and those circumstances are susceptible of two explanations, equally reasonable, the conviction should have been set aside on the general grounds of the motion for a new trial.

2. In the 4th and 5th grounds of the motion for a new trial it is complained that the court erred in refusing to allow the defendant to submit evidence tending to show the good character of Ettie Densmore, the woman with whom he was charged with having had illicit sexual intercourse. His counsel stated to the court that he expected to prove by the witness offered that Ettie Densmore was a woman of good moral character, and that her character for virtue and chastity was good. In overruling these grounds of the motion the judge explained that he "stated to and in the presence of the jury at the time [when this evidence was offered] that the law presumed she was of good character, and that they should so consider it in making their finding, unless the State should introduce somé one and show it was not good.”

The crime of adultery is one which necessarily involves two persons, and where the character of one of these persons can be shown to be of such exemplary purity or loftiness as reasonably to preclude the supposition that he or she would consent to participate in so base an infraction of marital faith and of the law, human and divine, any impartial jury, when apprised of such character, would unhesitatingly declare against the guilt of the other party. Suppose the testimony proposed by counsel for the defendant had been admitted by the court, and had demonstrated overwhelmingly, and without any conflict or dispute, that the woman in the case was of previously spotless reputation, of deeply religious temperament, a devoted wife and mother, whose aim in life was obviously to minister to the afflicted, care for the helpless, and uplift poor humanity to the utmost extent of her power, and whose soul was attuned to all of good we know, her hopes fixed upon the final reward which the "Giver of all good and perfect gifts” can alone bestow, how could it for a moment be imagined that any jury would accept evidence, less than overwhelming direct testimony from the highest sources, going to show that she wás guilty of so low a crime with any man, no matter who or what he might be, how 'attractive his personality, or what the circumstances, and convict the defendant thereon—since adultery necessarily involves consent on the part of both persons committing the crime? We illustrate by an extreme case, it is true, but even where the woman with whom the man is charged with having had unlawful intercourse can be shown simply to be a woman of established virtue, to that extent, or for whatever it may be worth to the jury, such proof would tend to negative or dispute testimony showing that the man accused was guilty with her. Since the very nature of the1 crime of adultery requires that two must be guilty if either be guilty, evidence which tends to show to the satisfaction of the jury that one of the parties is incapable of committing the particular crime, and therefore is innocent, would also tend to establish the innocence of the other.

We are of course aware of the usual rule that the character of one accused of crime can not be put in evidence by the State, and, unless he himself makes the issue, he can not be attacked on 'account of such character. Also we have in mind the rule the Supreme Court of this State has laid down in Lewis v. State, 89 Ga. 396 (15 S. E. 489), that in a trial for seduction it is not competent for the State to show that the family of the female alleged to have been seduced were of good character and standing in the community, or that even the character of the female herself was good, except in rebuttal of evidence tending to impeach her chastity or veracity. Nevertheless, while we find no definite authority in this State for the rule which we now announce, it seems to us to be good law that the accused shall be permitted to prove, if he can do so, that the woman with whom he is charged with haying had adulterous intercourse is one whose well-established character is such as to refute the charge. In Commonwealth v. Gray, 129 Mass. 474 (37 Am. R. 378), the court says: “In this case the precise question presented by the exception under consideration is whether evidence of*the character or reputation for chastity of the person with whom the adultery of the defendant is alleged to have been committed is admissible. It is quite true that legally her character or reputation is not in issue. No judgment upon this indictment can affect either her or her reputation ; and in no proceeding against her would a judgment upon this indictment be admissible in evidence. Still her character or reputation may be a material fact, and so evidence upon it be com-petent and material. There can be no doubt that, upon an indictment for adultery, the defendant may be convicted upon evidence wholly circumstantial; and, from the nature of the offense, it commonly happens that the act is finally inferred from circumstances, which circumstances may have in themselves very direct or only indirect bearing upon the issue. Suppose, in a case depending upon circumstantial testimony, the government should offer evidence that the defendant, a married man, was seen at a late hour of the night to accompany a common prostitute to a house of ill fame, and was seen to leave that house early the next morning, it is quite' apparent that not only the time, both at night and at morning, but the reputation both of the woman and the house, would be important and material, and evidence would be admissible upon each one of them; but neither of them is a fact which the judgment upon the indictment could in any mode affect, or in relation to which the judgment would be evidence. And so in relation to the character of the person with whom the adultery is alleged to have been committed; the judgment could indeed have no effect upon her, but her character is so connected with and so contributing to her identity that it becomes as really one of the necessary surrounding circumstances as any fact in the case. At any time, upon a charge of adultery, the government, after showing the defendant’s presence under suspicious circumstances with a woman, may show that that woman is a prostitute; and it would seem to be reversing the humane maxim of the law to permit the government to prove as' an independent fact the bad character of a woman in support of an issue, and to deny to the defendant the right to introduce evidence upon the same subject upon the same issue.”

The statement of the court to the jury, as to the presumption that the woman Ettie.Densmore was a woman of good character, would by uo means equal, in value to the defendant, proof by witnesses, possibly known to the jury to be reputable, that she was a person of good repute for chastity, and of the highest character in every way. So, under our view, the refusal to admit this testimony was error.

3. In the 6 th ground of the motion for a new trial it is contended that the court erred in refusing to allow counsel for the accused to read before the jury a part of the opinion from the Court of Appeals of Georgia, in the case of Long v. State, supra, set out in this ground of the motion. The judge certified, in approving this ground, that he refused to allow counsel to read the facts in that case to the jury, but expressly stated to him that he “might argue the law of it to them.” On the trial of civil cases, decisions of courts of last resort, and especially comments contained therein upon the facts of cases, should not be read by counsel to the jury. “Such a practice can not aid the jury in ascertaining the law applicable, for this they must take from the court; nor in arriving at ■the truth of the case on the facts, for this they must get from the evidence.” Hudson v. Hudson, 90 Ga. 582 (3) (16 S. E. 350); Central Railway Co. v. Hardin, 114 Ga. 548 (40 S. E. 738) . The rule is, however, quite different in criminal trials. That rule is concisely stated in McMath v. State, 55 Ga. 304, 305 (8) : “Upon the trial of criminal eases, counsel, in their argument, may read law to the jury in the hearing of the court, subject to the correction of the court in its charge.” See also Warmock v. State, 56 Ga. 503. “Of course, for the purpose of making the application, it is frequently necessary to read the facts stated in the opinion or contained in the report; and wherever they are read for the purpose of.making clear the principle decided, it is entirely proper to read them, as well as the opinion.” Cribb v. State, 118 Ga. 316, 319 (45 S. E. 396, 397). See also Wiggins v. State, 101 Ga. 502, 511 (29 S. E. 26). In the present case the excerpt from the opinion which counsel attempted to read to the jury was germane to the case on trial, and the recital of the facts set out therein was necessary to make the opinion intelligible; and counsel should have been permitted to read the excerpt.

The Supreme Court, it is true, held in Solomon v. State, 100 Ga. 81 (25 S. E. 87), that “While it is the right of counsel for the accused in a criminal case to read law to the jury and comment thereon, this court will not control the discretion of the trial judge in refusing to allow counsel to read from a Supreme Court report of this State the facts of a decided case for the purpose of commenting upon and comparing the testimony in that case with the facts of the case on trial.” In the present case, however, it does not appear that there was any attempt or intention to read the facts of the Long case, except in so far as necessary to make the opinion intelligible to the jury. In the case of Clark v. State, 8 Ga. App. 757 (70 S. E. 90), it was ruled that in a criminal case counsel for the accused has the right to read to the jury law applicable to the case, though the judge has power, in the exercise of his discretion, “to prevent counsel from reading to the jury, in such a way as to confuse them, law not applicable to the ease or to the point in issue, read as law to the jury.” and that, therefore, the court may limit counsel in what he may

4. In the 7th ground of the motion for a new trial it is complained that the court erred in charging the jury as follows: “Flight, if any, if proven, from which the inference of consciousness of guilt may be drawn, may be considered by the jury. But flight is subject to explanation. The weight to be given it, or whether the jury will draw an inference of consciousness of guilt or not, is for the jury, it is for the jury to determine whether the flight of the defendant was due to a scare of guilt or to other reasons, if from other reasons no inference hurtful to defendant must be drawn by the jury.” This charge was objected to because it was not authorized by the facts and because its effect was to emphasize unduly the testimony of Mrs. Gilbert that the defendant “trotted off” when she arrived on the scene. In Grant v. State, 122 Ga. 740 (50 S. E. 946), the court quoted with approval the following from People v. Welsh, 63 Cal. 167, 168: “The intention, like the act, may be proved by direct or indirect evidence of the circumstances connected with the crime. Hence the conduct of a party before and after the principal fact in issue is admissible, not as a part of the res gestee, but as a circumstance connected with the act' indicating the guilty intent.” And in the Grant case, supra, the court held: “It would be for the jury to determine whether the flight of the defendant upon seeing the policeman who had interrupted the game of cards was due to a sense of guilt or to other reasons.” While the instructions to which exception is taken in this ground of the motion for a new trial may somewhat emphasize the particular evidence referred to, we do not think they were so argumentative or so unduly stressed that evidence as to demand a grant of a new trial.

5. The 8th ground of the motion for a new trial complains that the court refused to rule out the evidence of Mrs. Gilbert that Mrs. Densmore “looked mightily embarrassed.” We see no error in admitting this testimony, nor do we think the testimony amounted legally to a mere conclusion of the witness. It would be well-nigh impossible for one testifying that another appeared to be. “embarrassed,” or “confused,” or “disturbed,” or “excited,” or “alarmed,” to give in every instance, or perhaps in most instances, all, or in some cases any, of the indicia or outward manifestations of the emotion testified about, though the witness might have absolutely no doubt as to the existence of the emotion, and his testimony might be entirely correct. While, in a sense perhaps, the testimony would express a conclusion on the part of the witness, in another sense the witness would be testifying to what was in effect a fact, impressed upon the mind of the witness by countless previous, observations and experiences concerning the outward manifestation or expression of the emotion testified about, to be often observed from the features, manner, or slightest movement of another. A flash of the eye, a covert glance, a turn of the head, the ghost of S smile, the lifting of an eyebrow, and a thousand other significant signs, which human experience may interpret, but which a witness'may be unable to describe, may make manifest the existence of a particular human emotion beyond the possibility of a doubt. Travelers Ins. Co. v. Sheppard, 85 Ga. 751 (8) (12 S. E. 18); Roberts v. State, 123 Ga. 146-160 (51 S. E. 374).

6. The 9th ground of the motion for a new trial complains that the court erred in refusing to allow the defendant’s counsel to prove by the witness for the prosecution, Mrs. Gilbert, the state of her feelings towards Ettie Densmore, the woman with whom the defendant was charged with having committed the adultery. Wé think such testimony was admissible, to explain or illustrate the motive actuating the witness. If the. fact could be drawn out from a witness that he had enmity or malice towards some person, not even a, party to or concerned in the case on trial, which the witness expected to gratify indirectly by bringing about the conviction of one on trial, or even by, testifying against such a person where a convietion -would not follow, it would seriously impair the value of his testimony. Suppose, for example, one harboring malignant hatred against a person of high repute and corresponding personal pride should by his evidence fix upon a son of his enemy a crime involving moral turpitude, would it not be eminently proper to show that the witness did in fact entertain such malignant hatred towards the father as would supply a probable motive for his evidence? “It has been frequently held that a party may prove anything which might in the slightest degree affect the credit of an opposing witness.” Bates v. State, 4 Ga. App. 486, 491 (61 S. E. 888, 890); 8 Enc. Pl. & Pr. 120. And see Penal Code, § 1023.

Judgment reversed.

Roan, J., absent.