Bryant v. State , 1918 Ga. App. LEXIS 2 ( 1918 )

Harwell, J.

This was a trial for seduction, and the only witness (except a witness for the State, an officer, in reference to the arrest of the defendant) was the prosecutrix. The defendant introduced no witnesses, but made a short statement, denying that he had promised to marry the prosecutrix. In the motion for a new trial it is complained that the court omitted to instruct the jury on the law touching, the defendant’s statement at the trial. This case is very much like that of Fields v. State, 2 Ga. App. 41, 47 (58 S. E. 327), where this court said: “'In this particular case the omission [to charge with reference to the defendant’s statement] was harmful, for the reason that the statement of the defendant and the evidence of the little girl (totally antagonistic to each other) were the only evidence in regard to the commission of the crime.' The statement of the defendant was in material conflict with the evidence offered against his plea, and for that reason it was the duty of the court, without request, to instruct the jury fully upon that subject.” In the instant ease we can not say that the omission to charge with reference to the defendant’s statement was not' harmful, and-must hold that the failure to do so was reversible error. Rivers v. State, 8 Ga. App. 694 (70 S. E. 47); Burns v. State, 89 Ga, 527 (15 S. E. 748); Doster v. State, 93 Ga. 43 (18 S. E. 997);Culver v. State, 124 Ga. 822 (2), 824 (53 S. E. 316).

We have not overlooked the qualifying note of the trial judge, and the testimony’taken upon the hearing of the motion for a new trial. It does not appear from this testimony, however, that counsel representing this defendant knew of the omission of the court to charge with reference to the defendant’s statement until after the verdict had been returned by the jury, when he made inquiry of.the court stenographer. Nothing appears in this testimony to cure the error.

Judgment reversed.

Broyles, P. J., and Bloodworth, J., concur.