Odum v. State

HarweiupJ.

(After stating the foregoing facts.) 1. The indictment in-this case began as follows: “State of Georgia, Bacon County. The grand jurors, selected, chosen, and sworn for the county of-, to wit,” etc. The defendant, before pleading to the indictment, demurred on the ground that it was fatally insufficient, because the name of the. county for which the grand jurors were sworn was omitted in the indictment. It is contended that this precise question has never been ruled in this State. We call attention to the decision by the Supreme Court .in the case of Stevens v. State, 76 6a. 96, where it was held that an indictment which was headed “Georgia, Liberty County,” sufficiently showed for what county the grand jurors- were drawn and served, and of what county they were. That case was cited with approval- in Tarver v. State, 123 Ga. 496 (51 S. E. 501), and Braxley v. State, 143 Ga. 658 (1), 660 (85 S. E. 888), and we 'consider it binding authority on this court in the instant case. See also 10 Enc. PL & Pr. 428, 429; 1 Bish. Cr. Proc. 668 (2); 22 Cyc. 240 (2). The trial judge did not err in overruling the demurrer to the indictment)

2. In ground'1 of the amendment to the motion for a new trial complaint is made of the admission by the court, over objection', of conversations between the defendant and the prosecutrix, after the alleged seduction, in which he urged her to take medicine which he had obtained for her, for the purpose of causing an abortion. This testimony was clearly admissible, under the ruling in Parker v. State, 11 Ga. App. 251 (2) (75 S. E. 437).

3. The court allowed the case to be reopened, after arguments had been made by one counsel each for the State and the accused, for the purpose of admitting proof to the effect that, at the time of seduction, the prosecutrix was unmarried. “It is not an abuse of discretion, in a case in which there is direct proof that the defendant was guilty of unlawful sexual intercourse, . . to reopen the case for the purpose of supplying proof of the necessary allegation of the indictment, as to whether the parties were married or ■unmarried as alleged. Á cáse should be reopened whenever it fis 'necessary in order to obtain the truth.” Chatman v. State, 8 Ga. App. 842 (2) (70 S. E. 188). The judge did1 not abuse his discretion in this instance.

Neither did the judge abuse his discretion in allowing the) proseéxxtríx, when recalled in rebuttal of the defendant’s statement at the trial, to be asked and to answer certain-questions not strictly in rebuttal of the statement. Glasco v. State, 137 Ga. 336 (3) (73 S. E. 578))

4. The court charged the following: “The defendant, contends that he is not guilty. He says that he is not guilty of' the crime charged against him. If you find that the contentions of the defendant be true, you should acquit the defendant.” Since the judge, elsewhere in his charge, fully and correctly instructed the jury on the burden of proof, the charge quoted above did not have the effect of “casting the burden of proof upon the defendant,” as is contended in ground 3 of the amendment to the motion for new trial.

The court charged: “If you believe, from the evidence, that the defendant did have carnal knowledge of her, and if you believe she was virtuous and permitted the defendant to have carnal knowledge of her, by reason of her love for him, and persuasion and promises of marriage, he would be guilty of seduction.” It is contended that this charge is erroneous because it authorized the jury to find the defendant guilty of seduction if it appeared that the prosecutrix “permitted the defendant to have carnal -knowledge of her by reason of her love for him, and persuasion and promises of marriage,” and did not require that it appear that the prosecutrix was induced by persuasion and promises of marriage to allow the defendant to have carnal knowledge of her. There is no merit in this contention, and the charge was not erroneous for the reason complained of.

There is no merit in ground 5 of the motion, complaining of the failure of the court to give a charge therein specified; since the substance thereof was embodied in the court’s charge.

■ 5. The only other question presented is as to the legal sufficiency of the evidence. It is insisted that, the intercourse between the accused and the female alleged to have been seduced was purely the result of his premise to marry her, and that the transaction was meretricious. It is insisted that the evidence fails to show any persuasion; and counsel for the plaintiff in error cites as authority Disharoon v. State, 95 Ga. 351 (22 S. E. 698); O’Neill v. State, 85 Ga. 411 (11 S. E. 856). In the Disharoon case, supra, it"'appeared that the defendant was a married- man, and there was no evidence to show that the prcseeutrix;did not know this .fact. ■ In the O’Neill case, supra, the court held that there was-no evidence to show any persuasion. -.Hpon an examination of the ..record in the instant case it is easily distinguished from the-two .cases.,cited. In, the instant ease there is ample evidence, as will be seen by a reference to the statement of facts, to show persuasion as well as promises of marriage. We think, therefore, that the evidence is amply sufficient to authorize the verdict. See Durrence v. State, 20 Ga. App. 192 (92 S. E. 962).

Judgment affirmed.

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