Wasden v. State , 18 Ga. 264 ( 1855 )

By the Court.

Benning, J.

delivering the opinion.

Can a single person he indicted for adultery and fornication ?’ Section five of the tenth division of the Penal Code is as-follows: “Any man and woman who shall live together in a state of adultery or fornication, or of adultery and fornication,, or who shall otherwise commit adultery or fornication, or adultery and fornication, shall he severally indicted, and on conviction, such offenders shall be severally fined or imprisoned,” &c.

[1.] The offences here prohibited are all joint offences. Each is the offence of a man and woman acting jointly. The remedy here provided, is, however, a several remedy — is a separate indictment against each — the man and the woman. ITad the remedy been also joint, there would not have been even the appearance of incongruity in the language of the section. But the Legislature had power to prescribe a separate suit for a joint offence. And they have only exercised that power in this section. The indictment, therefore, though against the man alone, was good.

The first request to charge was, in the opinion of this. Court, a request to charge what was the law. But the Court, although refusing to give that request in the words of the-request, gave in other words, as we think, the substance of it., And there was, in this case, no motion for a new trial. Had there been, this point might, under the New Trial Act of 1854, be material.

The second request was also, as we think, right. We know not of any law which makes the doctrine of the reasonable-doubt in criminal cases apply not to “the lesser grades of of-fences,” but only to the greater. The doctrine, as laid down by text writers, on evidence, extends equally to cases of every degree. Starkie’s language is, “ The distinction between full proof and mere preponderance of evidence, is, in its application, very important. In all criminal cases whatsoever, it is-essential to a verdict of condemnation, that the guilt of the accused should be fully proved; neither a mere preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose, unless it generate full belief of the fact, to the exclusion of all reasonable doubt.” (1 Stark. Ev. 478.)

This language has been adopted by this Court in Giles vs. The State of Georgia, (6 Ga. 285.) It has other sanctions. See 3 Greenleaf’s Ev. §29, and notes.

[2.] We think, therefore, that the Court below should have granted this request without a qualification, that excluded from the doctrine of the reasonable doubt the “lesser grades-of offences;” and so, that there ought to be a new trial.

The other exceptions were abandoned.