Parker v. State , 17 Ga. App. 252 ( 1915 )

Russell, C. J.

1. A prisoner who has once formally waived arraignment is not entitled, as a matter of right, to he arraigned on a subsequent trial granted upon his motion; and for that reason the refusal of the court to allow the defendant to withdraw his formal waiver of arraignment was immaterial and not erroneous.

2. A prosecution for seduction may be stopped by a bona fide and continuing offer of marriage, but the offer to marry to which the statute (Penal Code, § 379) refers can only be made before arraignment at the first trial. The arraignment to which the code refers is the arraignment at the first trial of the offense. No offer to marry after there has been a trial of the case is within the provisions of the statute.

3. The general rule that a foundation must be laid in order to authorize the introduction of proof of previous contradictory statements for the purpose of impeachment has no application when the testimony which it is sought to attack is in the form of an affidavit. Upon a former trial of this case an affidavit purporting to contain the testimony of an absent witness in behalf of the defendant was submitted to the jury, with the consent of State’s counsel, in order to avoid a continuance. The agreement of the solicitor-general to the introduction of the contents of this affidavit in lieu of the oral testimony of the absent witness, however, was not made under the provisions of section 5716 of the Civil Code. The State agreed merely that the absent witness, if pz-esent, would testify to the facts stated izi the affidavit, and reserved the right to contest the truth of these statements. Thereafter, upon the tidal now under review (the affiant in the meantime having died) the affidavit was admitted, over the objection of the prosecution, but a witness for the prosecution was permitted to testify that the affiant had practically admitted the falsity of the statements contained in the affidavit. Neither the affidavit nor the testimony introduced to contradict it was legally admissible, but it does not appear that the error was harmful to the accused.

4. The remaining assignments of error are without merit.

5. The evidence supported the verdict, and there was no error in refusing a new trial.

Judgment affirmed.

Broyles J., not presiding.