Sullivan v. State , 1904 Ga. LEXIS 75 ( 1904 )

Lamar, J.

There are twenty-seven grounds iu the motion for anew trial. The judge’s notes to 6th, 9th, 11th, 16th, 17th, 19th, 21st, and 22d grounds show that no error was committed as therein alleged. Several of the grounds merely state that evidence was offered over the objection of the defendants, without showing when the objection was made; and in other instances it affirmatively appears that the objection is first stated in the motion. The 13th, 14th, 17th, and 18th grounds assign error on the refusal of the court to allow the defense, to show that the members of the family of the young woman had acquired knowledge of her criminal relations with the defendant. But their knowledge or ignorance was wholly immaterial, and could in no way illustrate the issue on trial. In fact it was so immaterial as not to form the basis for impeachment by showing contradictory statements in relation thereto. The loss of the letter (6th ground) was properly proved as the foundation for the introduction of secondary evidence of its contents. As to the 15th ground, it was not error to permit evidence as to the facts and circumstances leading up to the criminal intimacy. It merely gave the history of the relations between tlfe parties, was not a matter in dispute, and in substance was admitted by the defendant’s statement. The evidence as to the úse of morphine with suicidal intent (16th ground) was in reply to a line of investigation begun by the defendant. The assignment of error can not be considered, because it affirmatively appears from the note of the judge that the grounds of objection stated were not made during the trial. The motion itself recites that the “defendant now contends,” etc. The objections to the evidence admitted, as set out in the 1st and 7th grounds, for the reason that there had been no proof of a conspiracy, are without merit. It would of course have been better to have first proved the. conspiracy; but immediately afterwards its existence was proved by the young woman and another witness. • Noris there any merit in the 2d, 3d, 4th, 5th, 10th, and- 11th grounds of the motion; for while the indictmént charged that the crime was committed : by the use of pressure and instruments, it was competent to show that the defendant had previously attempted to procure an abortion by similar means, and by the use of medicines. It was therefore competent to offer the bottle with the number and contents of the prescription, and to establish from the physicians what the effect of this medicine in such doses would have been. There was a logical connection between the two attempts to procure an abortion on the same female. Prior unsuccessful attempts to bring about the abortion may be shown. Cawthon v. State, 119 Ga. 409. This evidence'was also admissible, in the light of the physician’s testimony, for the purpose of showing that the flow testified to by the young woman as having taken place in October had been produced by the use of the medicine, without producing a miscarriage. It was further competent as tending to show that the defendant knew that pregnancy had existed long enough for the foetus to be quick on January 9, 1904. ' To show knowledge of the fact of pregnancy and that the child was quick, it was also proper to show, as set out in the 8th ground, that the young woman told the defendant she had felt the child move before the operation was performed.

In the 19th ground complaint is made of the refusal of the court to declare a mistrial, because of a demonstration on the part of the young woman in the presence of the jury. . According to a note of judge, it was not of such a character as even to attract the attention of the jury, and it was not error to refuse to declare a mistrial.

The charge referred to in the 21st ground was free from error. The judge was instructing the jury as to the distinction between the offenses defined in the Penal Code, §§81, 82, and calling attention to the different results growing out of the difference in the development of the foetus. He was not dealing with the subject of intent, which was treated in another part of his instructions to the jury. Besides, it has been repeatedly decided that a charge correct in itself can not be attacked because it fails to present some additional or further proposition.

The charge that “ the word ‘ child ’ as used in the Penal Code, § 81, means an unborn child so far developed as to be ordinarily quick, so far developed as to move or stir in the mother’s womb,” was correct. Rex v. Phillips, 3 Campbell, [77].

In the 23d ground it is set forth that one of the jurors had expressed an opinion which disqualified him from serving on this trial. On this point affidavits and counter-affidavits were submitted. The issue of fact thus raised was peculiarly a matter for the consideration of the judge. His discretion will not be controlled unless abused, and here it was properly exercised.

Nor was the verdict contrary to law or to evidence. If not absolutely demanded, it was overwhelmingly supported. The only point of attack on the State’s case related to the age of the foetus. The testimony for the State established- positively that it was quick. The flow in November was shown to have been caused by drugs. The defendant himself offered in evidence a letter written to him in November, in which the young woman stated that she had been pregnant about three months and was growing stout. The operation was performed two months later. There was no error in refusing to grant the new trial.

Judgment affirmed.

All the Justices concur.