Bass v. State , 103 Ga. 227 ( 1897 )

Fish, J.

1. Where the State, in a trial for fornication, relies for a conviction upon proof showing that the accused, an unmarried man, and the other alleged guilty party, an unmarried woman, were, at a certain time and a designated place, in a position relative to each other which, taken in connection with other proven circumstances, strongly indicated that the act of sexual intercourse was taking place between them, evidence of former lascivious familiarities between the same parties, within a comparatively recent period, increases the probability that the offense charged was actually committed at such time and place. Proof of such lascivious conduct between the parties as that shown by the evidence objected to in the present case, in the very nature of things, and in accordance with observations of human conduct, shows a tendency or disposition in each party toward the commission of the sexual act with the other; it shows that modesty and self-respect, strong safeguards of virtue, had been previously broken down, and that the parties were already upon such terms of lascivious intimacy as to render it probable that, given the opportunity, they would indulge in sexual intercourse with each other. Testimony of this character is peculiarly relevant where, as in this case, the evidence as to the surroundings of the parties at the time that the offense is alleged to have been committed is such as to show a boldness and want of care to avoid detection, which might seem unnatural and improbable, unless it were shown that their previous conduct toward each other was of such a character as to induce the belief that illicit relations had already been established between them. In the case under consideration, the evidence as to the previous lascivious conduct between the parties strongly tended to create the belief in a rational mind that they had been criminally intimate prior to the occurrence upon which the State relied for a conviction. It was clearly admissible for the purpose of throwing light upon the relations existing between them, and as tending to illustrate the real nature of their conduct at the time and on the occasion when the State claimed the offense was perpetrated. The authorities which sustain its admissibility are abundant. In Gillett on Indirect and Collateral Evidence, § 58, the rule in reference to the admissibility of such evidence in a case of this kind is stated as follows: “Where the .question at issue is as to the existence of a criminal intimacy at a certain time, evidence of prior acts of indecent familiarity is competent as tending to show an antecedent probability.” See the numerous cases from the courts of different States, there cited in support of this proposition; also Abbott’s Trial Brief, Criminal Causes, § 598, subheads, Adultery and Incest, and the cases cited.

2. The State elected to try the defendant upon the proof tending to show the commission of the offense at the time of the more recent occurrence shown by the testimony. The court, therefore, very properly instructed the jury that they could not convict upon the evidence relating to the prior occurrence, but that this testimony was for their consideration “simply to show the relations between the parties, and as a mere circumstance in the case, in connection with other circumstances, to be considered by the jury.” The plaintiff in error alleges that the charge of the court in this respect “ was error because it tended to mislead the jury, and should not have been submitted to the jury at all, it being outside of the case for which the defendant was indicted and being tried.” As we have seen, this evidence was undoubtedly admissible for the purpose to which the court restricted it. It was therefore, to this extent, not outside but inside “of the case for which the defendant was indicted and being tried.” We do not see how the jury could have been misled by a charge which so clearly and properly limited and defined the purpose for which this testimony could be considered by them.

3. The accused Avas not tried for an offense alleged to have been committed on the occasion to which the evidence objected to referred; the issue was whether he was guilty of the offense of fornication on the subsequent occasion shown by the testimony, and the evidence in question was simply collateral as to this main issue. It was certainly not rendered inadmissible for the purpose aboA^e indicated, and to which it was restricted by the court, merely because it had not been introduced before the grand jury.

4. The mere failure to charge upon the law relating to the impeachment of witnesses is not cause for a new trial, when it appears that the attention of the court was not directed to this matter and no request to charge concerning it was made. Smith v. Page, 72 Ga. 539; Cole v. Byrd, 83 Ga. 207.

5. The evidence warranted the verdict rendered, and there was no error in refusing to grant a new trial.

Judgment affirmed.

All the Justices concurring.