Herrin v. State , 70 Ga. App. 485 ( 1944 )

The evidence authorized the verdict.

DECIDED JANUARY 6, 1944. The defendant was convicted of seduction. He filed a motion for a new trial on the general grounds only, which was overruled, and he excepted. The prosecutrix testified: "I am Emmie Gibbs. I am unmarried. I have never been married. I have had sexual intercourse with the defendant in this case, Everett Herrin. Before I had intercourse with him I had never had to do with any other man in that respect, because I went with him six years. No other man ever did touch me; I never was with anyone but Herrin. I was a virgin at the time I had this first intercourse with him. He promised to marry me was how come I let him have to do with me in that manner. We were engaged before we had the first intercourse. We had been engaged something near a week. I, at first, refused him. He kept on begging to finally get me to yield to him. He repeated his promises of marriage when he begged. I had faith in him, loved him, and believed what he said. No, sir, I would not, under any circumstances, have yielded to his desire to have intercourse except for his promise of marriage and persuasion. I had a bona fide contract to get married regardless of what might happen to me. It was not conditioned on the fact if I got pregnant. He was to marry me regardless of whether I became pregnant or not. He was to marry me if I did get pregnant, and he was to marry me if I did not get pregnant. This intercourse took place in Habersham County in Mud Creek District. I had the first intercourse with him in 1941. I had several intercourses with him. I had been going with the defendant for six years before I became pregnant. I had intercourse with the defendant for something near a week before I became pregnant. I can't tell how many times, I can't tell just about the time I got pregnant, but he just kept on. I had been going with him six years before that time. The first time he ever promised to marry me was when he asked me for intercourse. When he asked me for intercourse he said if anything happened to me, if I got pregnant he would marry me, and before that too. He told me he would marry me about a week before that, we was engaged a week before that. We were supposed to be married on Sunday; on Sunday of the time that we had intercourse. We were not married at that time, and I went ahead and had intercourse with him regardless of the fact that we did not get married on that day. I don't remember on what day of the week I became engaged to him. We were at Mud Creek on the road coming to Cornelia. `Let's have intercourse' was not the first thing he said about it. The first thing he said was, `What about getting married and going down to South Georgia?' We were coming to Cornelia at that time. He said: `Let's get married and go to South Georgia and stay awhile and have a big vacation,' and I says `Okay,' and it rocked on that way a few days, and then he commenced to begging for intercourse, he says: `I tell you what I will do, I will marry you just the same, and if not I will marry you just the same.' He says if you come on and have intercourse I will marry you. He agreed to marry me in return for us having intercourse. Well, now, we were supposed to get married. We were supposed to get married on Sunday on Sunday on the first day that we had intercourse. That was on Sunday. It happened down there in the pasture on Ed Colbert's farm. That was at Mud Creek. It was just down below the house from where I lived. We were living on Ed Colbert's farm. I did not slip down to the pasture to him. No, sir. We was coming to town, coming to Cornelia, like we always go to town on Saturday. I said we was going to Cornelia, didn't I? I said the intercourse happened on Sunday, sure I am right. We were going to Cornelia to go to Church. We were going up there to that tent meeting. This happened some time along in September. The baby was born on the 26th of June. I did not have intercourse with him at all after the baby was born, but he come into the home after the baby was born and give it its name, and nursed the baby. After the first time that I had intercourse with him, he just kept on, continued until I got larger and larger. I don't know when the second intercourse occurred. I don't know, and can't tell when the second intercourse with the defendant occurred. I don't know how long it was from the first time because it kept continually on. I don't remember where the second intercourse occurred. I can recall where the third intercourse took place: there at the same place where the first one was. It took place on Friday. It was the next Friday after the Sunday the first one occurred. He had intercourse all the time. It was not one time, it was continual. He would come by my house and we would go down in the pasture, and it took place all the time in the pasture, in the day time. We would go something like a hundred yards from the house, not in plain sight of the house because of a big pine grove just a little bit higher than my head. I did not go to Toccoa and stay awhile over there. The only time I was there was when my father was in the hospital, and then I stayed at the hospital with Daddy. I did not go to Toccoa and live with another man as man and wife. I did not have a conversation with Mrs. Fannie Pittman about who the father of this baby was. Mrs. Fannie Pittman was not at my home after this child was born. Neither my mother nor I ever told her who the father of this baby was. Rob Pittman and Ora Lee Pittman came to our house a few days after the baby was born; Fannie Pittman did not. There was not some doubt in my mind about who to accuse of being the father of my baby. Everett Herrin is the daddy of the baby. No, sir, I did not jump on a man in the public streets of the City of Cornelia and accuse him of being the father of the baby. Sure, I know Marion Sellers. No, sir, I did not accuse Marion Sellers there in the City of Cornelia in front of Fowler's Store on Saturday afternoon of last year of being the father of my child. I ain't seen Marion Sellers. No, sir, he is not the daddy of this child; Everett Herrin is the daddy of this child." At this point the State rested after exhibiting the child to the jury for the alleged purpose of showing some resemblance between the child and the defendant on trial, which was done without objection.

The defendant made the following statement: "Gentlemen of the jury, I am not much on talking myself. I never had my first date with this girl. I never saw any man that would want a date with her. I have known of her, and her character has not been so good I don't think, and I feel myself above such people as I thought she was; and she sworn about it being on Sunday. I went to church on Sunday morning, every Sunday morning and Sunday night. I plead not guilty. I haven't had anything to do with her, and never was with her on Sunday, and did not know where she lived at Mud Creek. I believe that is all I have got to say."

Several witnesses were introduced by the defendant, and one other witness by the State. The testimony of none of them materially effects the testimony of the prosecutrix, as introduced by the State, or the contentions of the defendant under his statement. It is earnestly contended by able counsel for the plaintiff in error that the evidence for the State merely shows a meretricious, corrupt transaction on the part of the prosecutrix. Counsel quote certain portions of the evidence which, if such were all the evidence, would justify their learned, eloquent, and persuasive argument. For this reason, and in order to get all of the evidence on which to base our decision of the case, we have set forth in full the testimony of the prosecutrix. This court held in Adams v. State, 58 Ga. App. 632 (199 S.E. 542): "Whether or not the prosecutrix yielded to the defendant by reason of `persuasion and promises of marriage' resolved itself, under the evidence, into a question of fact for the jury, and this court is not authorized to upset their verdict finding the defendant guilty." While it is true the engagement of marriage inAdams v. State, supra, under the evidence, was made three months before the alleged seduction, and the engagement according to the prosecutrix, was one week before the alleged seduction in the instant case, we do not think, under the facts of this case, that the difference in time between the promise of marriage and the seduction would change the principle that it was a jury question. We know of no ruling to this effect.

It will be noticed from the testimony of the prosecutrix that she had "been going with" the defendant for six years and that she had become engaged to him some time near a week before the alleged seduction. She further testified that he repeated his promises of marriage and begged her to begged her to yield to him and that she yielded because of the promises of marriage and his begging and persuading. In Woodard v. State, 5 Ga. App. 447 (5) (63 S.E. 573), this court held: "To accomplish sexual intercourse with a virtuous woman, pending a virtuous engagement to marry her, may be seduction, though consent be obtained without other persuasion than that which is implied (considering the past courtship and the present relations of the parties) in proposing the intercourse and repeating the promise of marriage." Also, in Collins v. State, 54 Ga. App. 246 (187 S.E. 621), this court said: "The elements necessary to constitute the offense of seduction are sufficiently `satisfied by courtship or wooing resulting in an engagement to marry, and by the successful use of that engagement, on the part of the suitor, to accomplish the ruin of a virtuous and confiding woman." In Durrence v. State, 20 Ga. App. 192 (92 S.E. 962), this court ruled: "The prosecutrix testified that she and the accused were `engaged to marry' when he first had sexual intercourse with her, and had been engaged for some time before it occurred, and that she yielded to him because she `loved him and he promised to marry' her. There being, according to this testimony, a bona fide existing and virtuous engagement to marry, the jury were authorized to infer that the illicit intercourse was not a purely meretricious transaction, notwithstanding the further testimony of the prosecutrix that, `He told me he would marry me if I got into any trouble, and that he loved me, and I told him that I loved him,' and `I agreed to it because I loved him and thought he loved me, and because he said if he got me a baby that he would marry me, and that is why I let him do it.' `To accomplish sexual intercourse with a virtuous woman, pending a virtuous engagement to marry her, may be seduction, though consent be obtained without other persuasion than that which is implied (considering the past courtship and the present relation of the parties) in proposing the intercourse and repeating the promise of marriage.'" Note that O'Neill v. State, 85 Ga. 383 (11 S.E. 856), is distinguished from the case then under consideration. The same distinction is equally as apparent in the case at bar. See Studdard v. State, 59 Ga. App. 347 (200 S.E. 816).

Under the facts as stated and the authorities above cited, we are convinced that the verdict is warranted by the evidence. This is true notwithstanding the following authorities cited and argued by the defendant: Disharoon v. State, 95 Ga. 351 (22 S.E. 698); Eichwurtzle v. State, 54 Ga. App. 205 (187 S.E. 606).

The court did not err in overruling the motion for a new trial.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.