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fect the object of the rule so "far as prac ticable and convenient." Pen. Code, § 1017; Turbaville v. State, 58 Ga. 545. As formerly, however, "it is in a great degree discretionary with the presiding judge whether he will allow some" of the witnesses to remain in the court room to assist in the conduct of the case, when he is requested so to do by one of the parties. Carson v. State, 80 Ga. 170, 5 S. E. 295; Dale v. State, 88 Ga. 557, 15 S. E. 287; Betts v. State, 66 Ga. 508; May v. State, 94 Ga. 76, 20 S. E. 251; Hinkle v. State, 94 Ga. 596, 21 S. E. 595; Thomas v. State, 27 Ga. 287, 296. Certainly, in the present case, there was no abuse of discretion in acceding to the request of the solicitor general that the prosecutrix might be permitted to remain in the court room to assist him in the prosecution. And, even though it may not have been likewise proper to also allow her father and mother to be present during the examination of the witnesses, it is equally certain that the error (if any) thus committed was one unattended with any injury to the accused. The record discloses that the case turned mainly upon the testimony of the prosecutrix herself, and that of the father and mother bore only indirectly upon the controlling questions at issue, and was of no great materiality. We therefore think it far from reasonable to assume that they were influenced in testifying as they did by what fell from the lips of other witnesses. The accused introduced in his behalf no evidence whatsoever, and accordingly no conflict as to even minor matters resulted, as might have been the case had these two witnesses been introduced in rebuttal to evidence elicited from witnesses testifying in his favor. Indeed, the record before us fails utterly to present any reason for concluding that the action of the court of which complaint is made in any way operated to his prejudice. It was insisted in the argument here that, although it may not have been improper, in the first instance, for the court to allow the prosecutrix and her father and mother to remain in the court room, it was manifest error to permit them to do so after counsel for the accused had called the court's attention to "signs" made by the former to her father while he was on the stand, and to similar "signs" made by the mother to the prosecutrix while the latter was testifying. It was also urged that the court committed error in not thereupon promptly declaring a mistrial. An inspection of the record shows, however, that the several grounds of the motion for a new trial setting forth the complaint of the accused concerning this alleged misconduct on the part of the prosecutrix and her mother cannot properly be considered by this court, as the same are not verified. The trial judge, in this connection, certifies that he "was looking directly at the parties in both instances, and saw no signs made"; yet, when attention was directed by counsel to

this alleged improper conduct, "declared with positiveness that anything of the kind was wrong, and must not be done. There was no request that a mistrial be declared." If counsel was satisfied that the prosecutrix and her parents were guilty of misconduct calculated to prejudice the accused, notwithstanding the court had failed to observe the same, the proper course to pursue would have been to request the court to then and there investigate into the truth of the matter, and, if the charge preferred against the witness was sustained, to declare a mistrial. See Smalls v. State (Ga.) 29 S. E. 153. It is too late, after verdict, to complain for the first time of matters which might have been made the basis of a motion for a mistrial. Railroad Co. v. Powell, 89 Ga. 601, 16 S. E. 118; Edwards v. State, 90 Ga. 143, 15 S. E. 744; Farmer v. State, 91 Ga. 720, 18 S. E. 987.

2. In another ground of his motion for a new trial, the accused complains that the court refused to permit his counsel to ask the prosecutrix, on her cross-examination, concerning her physical condition on a specified date some two years or more after her alleged seduction, or as to the birth of a second child, with which she was then pregnant. The purpose for which counsel sought to elicit testimony on this line was not stated to the court at the time, but was for the first time disclosed when the accused filed his amended motion for a new trial. As counsel therein undertakes to explain, he intended to follow up his questions to the prosecutrix by showing that her pregnancy was not known to the accused when he then made to her an offer of marriage; that she had stated to her attending physician, who was present in court as a witness for the accused, that the father of both of the children born to her was the same man; and that from the admitted absence of connection of the prosecutrix with the accused for over a year before the birth of the second child "it was a natural impossibility for the defendant to be father of the second child, and therefore, according to her admission, not the father of the first one." The questions which counsel proposed to ask the prosecutrix were apparently totally irrelevant to the issue on trial. That he was not allowed to put them to the witness can afford no just cause of complaint, as he voluntarily chose not to reveal to the court the supplemental evidence which he now claims it was in his power to produce (but which he did not thereafter offer), in connection with which the answers he expected to elicit from the prosecutrix might have had some bearing on the case. It appears rather that the accused did not deal fairly with the court than that the court did not deal fairly with the accused, with regard to the matter under discussion.

3. The circumstances under which the trial judge put to counsel the inquiry referred to

in the third headnote are not disclosed by the record, and, in the absence of fuller light on the subject, we are not prepared to say any error was committed. We confidently assert as an abstract proposition that it is not improper for the court to endeavor "to learn from counsel his position in the case," and to that end to inquire of him concerning any point in issue as to which counsel has not made his attitude free from doubt. We cannot assume that a trial judge has, with this object in view, unwittingly prejudiced the rights of the party before the court. On the contrary, it being incumbent on a party alleging error to make the same clearly to appear, we are bound to presume, where this requirement is not met, that the occasion called for the action taken by the judge, and that no injury to the party complaining resulted therefrom in point of fact.

4. Exception is taken to the refusal of the court to give in charge to the jury the following written request: "Under the law of Georgia, seduction is a felony, and by [statute] the testimony of an accomplice, uncorroborated, is insufficient to convict. I charge you in this case that the testimony of the prosecuting witness, Florence W. Marshall, must be corroborated, before there can be any conviction." No error was committed in declining to give to the jury this instruction. Where a virtuous unmarried female has been cruelly betrayed, it is evident that she has been much more sinned against than sinning; and the law regards her as the victim, rather than as an accomplice, of him who accomplishes her ruin, and brings about her downfall. Thus is she regarded even where she has given her consent, and voluntarily submits to an operation intended to produce an abortion. 1 Am. & Eng. Enc. Law (2d Ed.) 390, citing numerous decisions. "The test, in general, to determine whether a witness is or is not an accomplice, is the inquiry: Could the witness himself have been indicted for the offense, either as principal or as accessory?

It follows that a participant in an offense, however morally guilty he may be, whose connection with the forbidden transaction does not render him liable to an indictment therefor, is not an accomplice." Id. Applying this test, the conclusion seems irresistible that the prosecutrix in the case at bar is not to be deemed an accomplice of the accused.

5. Counsel for the defense further requested the court to charge: "While, as a general rule, unmarried females who are virgins are virtuous, and those who, by their own consent, have ceased to be virgins are not virtuous, still the question of moral chastity should be considered by the jury in determining the fact whether the woman be or be not virtuous. The jury have the right to consider further whether the woman was seduced by the accused, or joined with him in the gratification of lewd and lascivious desire, not excited by arts and importunities upon

his part." We recognize the fact that the above request was substantially in accord with the law announced in the fifth headnote, which follows the decision of this court in O'Neill v. State, 85 Ga. 409, 11 S. E. 856. In the present case, however, such a charge would have been highly improper, for there was no evidence before the jury upon which it could have been predicated.

6. Error is assigned "because the court permitted the state to prove, over the objection of defendant's counsel, that promises of marriage were made after the alleged seduction, the question being, 'Did he make promises each time?" and the grounds of objection being that "the question was leading, and the evidence sought was irrelevant." As to the first point raised, suffice it to say that this court has uniformly held it to be within the discretion of the trial judge to permit leading questions to be propounded to a witness. There is no merit in the contention that the evidence was irrelevant. The present case has many of the features of, and is quite similar to that of, McTyier v. State, 91 Ga. 254, 18 S. E. 140, wherein it was held: "On a trial for seduction alleged to have been accomplished by persuasion and promises of marriage, promises of marriage made and letters written by the accused to the woman after the seduction, but pending the marriage engagement, are admissible in evidence."

7. It by no means follows, however, that it is competent, on such a trial, for the accused to prove acts of sexual intercourse between the female and a person or persons other than himself, occurring after the time when the alleged seduction took place. Mann v. State, 34 Ga. 1. That the victim of his lust thereafter follows a life of shame, if not traceable solely to the wrong he has perpetrated upon her, is a circumstance under which he cannot take shelter, for it is of no evidentiary value in determining whether or not she had maintained her virtue until deceived by him. Accordingly, we think the court properly ruled that the evidence concerning the birth of a second child born to the prosecutrix, of which the accused was certainly not the father, was inadmissible.

8. The meaning of the term "virtuous," as used in our statute (Pen. Code, § 387, declaring it penal to seduce "a virtuous unmarried female," is for determination by the court, not by the jury; though "whether a particular woman had parted with her virginity before the alleged seduction took place is a question for the jury." O'Neill v. State, 85 Ga. 383, 11 S. E. 856, followed in McTyler v. State, 91 Ga. 255, 18 S. E. 140. A woman who has never been married, and who has never had sexual intercourse, is in law virtuous, in the sense that she may be the victim of seduction. Whether such a WOman has really been seduced, or only joined with her alleged seducer in the gratification of lewd and lascivious desire, not excited by his arts and importunities, but having its

roots in her own depraved and debauched mind, is a question the jury are to consider under all the facts and circumstances before them. Id. And, in any given instance, they are to decide whether she yielded to the accused, not because of persuasion and promises of marriage, or by reason of other false and fraudulent means, but because she was lustful, wanton, and desirous of the intercourse in order to gratify her own passions. Every virgin, however passionate her nature, may be seduced if, notwithstanding her lustful desires, she keeps her chastity, and surrenders it only because of persuasion and promises of marriage, which, coupled with her love for and confidence in her tempter, overcome her virtue, and cause her to yield to his importunities. For "the weakest of all weak virgins is under the protection of law against the seducer, and, if her fall can be traced to actual seduction, the law will be, and should be, her avenger." O'Neill's Case, 85 Ga. 410, 11 S. E. 858. Exception was taken to certain extracts from the charge of the court bearing upon this branch of the case, which were substantially in accord with the principles of law just stated. Without dealing specifically with the various criticisms thereon urged by counsel for the accused, we rule generally that no error was committed in this connection. As no new or specially important questions are thereby presented for determination, no further discussion or citation of authority would be profitable.

9. Another ground of the motion for a new trial assigns as error the following charge: "If you find the statement consistent and true, you have the right to believe it in preference to the sworn testimony in the case. You should not do so carelessly and capriciously, but under your oaths as jurors, considering the statement in connection with the sworn testimony in the case, and testing it in the light of that testimony, give it such weight as you think proper." The error assigned is "that said charge is illegal, in that the weight to be given to the statement of a prisoner is not to be tested in the light of the testimony; there being no test by which the jury shall determine the degree of belief that they shall give to the statement of a prisoner." All of us, except Mr. Justice LITTLE, are of opinion that there was no error in this charge. The statute provides that "the jury may believe such statement in preference to the sworn testimony in the case." Pen. Code, § 1010. The jury can do nothing carelessly, capriciously, or arbitrarily. The statute, interpreted according to the meaning of the words used, is the measure of their power. "Belief," is a persuasion of the truth, or an assent of the mind to the truth of a declaration, proposition or alleged fact. See Webst. Dict. "Preference" means the act of preferring one thing above another; estimation of one thing more than another; choice of one thing rather than another.

Id. The jury cannot believe the statement of the prisoner unless they are persuaded of its truth, nor can they believe such statement in preference to the sworn testimony in the case until they have compared the one with the other, determined their preference, and decided which of the two they will accept as the truth. In no other way can they believe one in preference to the other. Surely, the statute never authorized the jury to accept the prisoner's statement without consideration of its own truth, and without regard to the existence of the sworn testimony. 10. We are unable to say that the court below committed error in refusing to set the conviction aside because of the alleged newly-discovered evidence presented in connection with the motion for a new trial filed by the accused. The showing made by him was fully met by counter affidavits presented in behalf of the state, and accordingly it does not satisfactorily appear that, if afforded the opportunity, the accused would be able at another hearing to produce credible witnesses whose testimony would outweigh that of the state's witnesses concerning the chastity of the prosecutrix previous to her alleged seduction. The rule is well settled that a new trial will not be granted because of newlydiscovered evidence, unless it be of a character to influence the jury, upon another investigation, to reach a different conclusion concerning the controlling facts at issue.

11. A number of minor questions are also presented by the motion for a new trial, but none of them are of sufficient importance to require special notice. The foregoing discussion disposes of every assignment of error which could possibly be regarded as affording ground for a reversal of the judgment of the court below. The charge of the court was, as a whole, a clear and able exposition of the law governing the case, and fully covered every request to charge, in so far as it was legal and pertinent. The accused introduced no evidence in his own behalf, but chose to rely solely upon his unsworn statement. The jury credited rather the evidence in behalf of the state, and, for aught that appears, their verdict should be allowed to stand. Judgment affirmed. All the justices concurring.

LITTLE, J. (concurring specially). I concur in the judgment, but dissent from the proposition announced in the ninth headnote.

(103 Ga. 841)

MOHRMAN v. CITY COUNCIL OF AUGUSTA.

(Supreme Court of Georgia. July 28, 1898.) CERTIORARI-CONVICTION OF MISDEMEANOR

BOND.

Section 4639 of the Civil Code applies exclusively to civil cases, and therefore the provision therein which declares that a party ap plying for the writ of certiorari "shall give bond and good security, conditioned to pay the ad

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FISH, J. Plaintiff in error was convicted in the recorder's court of the city of Augusta of violating an ordinance of that city, and fined $100. Her certiorari from the judgment of the recorder was dismissed in the superior court upon the ground that the bond given by her, and attached to her petition for certiorari, did not appear to have been approved by the recorder who tried the case. The bond was for the payment of $100, or the eventual condemnation money, "and all future cost in said case." Error is assigned upon the dismissal of the certiorari. Section 4639 of the Civil Code provides that "before any writ of certiorari shall issue * party applying for the same

the shall

give bond and good security, conditioned to pay the adverse party in the cause the eventual condemnation-money, together with all future costs, which bond shall be

filed with the petition for certiorari," etc. While the language of this section seems sufficiently broad to cover all cases, we are confident it was never intended that the giving of an eventual condemnation money bond should be a condition precedent to the issuance of a writ of certiorari in a case where one has been convicted in a corporation court of the violation of a municipal ordinance. What would be the eventual condemnation money in such a case? We cannot believe that the statute means a person so convicted and fined shall give an eventual condemnation money bond for the payment of the fine, upon which bond judgment may be entered up against the principal and his sureties in the event his certiorari be overruled or dismissed. If so, what would be the procedure if an alternative sentence (fine or imprisonment) should be imposed, and the petition, upon the overruling of his certiorari, should elect to serve the term of imprisonment rather than to pay the fine? What would be the liability on the bond in such a case? Again, suppose the sentence should be to serve a term in prison or in the city chain gang, without the imposition of a fine; what then would be the eventual condemnation money? Evidently the provisions of the section under consideration as to giving the bond apply exclusively to civil cases, and not to a case where one convicted in a mu

nicipal court of a violation of a city ordinance is seeking to obtain a writ of certiorari; the latter case being in its nature a criminal proceeding. Cranston v. Mayor, etc., 61 Ga. 572. We know of no law requiring any bond to be given as a condition precedent to the issuance of the writ of certiorari, where one has been convicted in a corporation court of the violation of a municipal ordinance. And, as the plaintiff in error was not required to give any bond in order to obtain the writ, it was immaterial whether or not the bond she did give had been approved by the recorder who tried the case. Therefore the court below erred in dismissing the certiorari for the want of such approval. Judgment reversed.

(102 Ga. 461)

DIXON v. BRISTOL SAV. BANK et al. (Supreme Court of Georgia. Aug. 5, 1897.) ESCROW-UNAUTHORIZED DELIVERY-RATIFI

CATION.

1. An escrow obtained from the depositary by a fraud practiced upon him by the grantee, who had not performed the conditions upon which delivery was to be made, the depositary being innocent of any wrong or bad faith, passes no title either to the grantee or to an innocent purchaser from the latter.

2. If, however, the grantor, after such improper delivery, ratified the same, the delivery was effectual to pass title from the grantor. (a) Whether or not in the present case there was ratification, as claimed, was a question which the judge ought to have submitted to the jury, instead of solving himself by granting a nonsuit.

3. "A grantor cannot deliver a deed to a grantee or his attorney as an escrow. Such a delivery would be equivalent to adding a parol condition to the instrument. To make the deed an escrow, it should be delivered to a third person, to be by him delivered to the grantee, upon the performance of any required condition." The agency implied in the above-quoted language is an agency, in behalf of the grantee, to obtain possession of the instrument for the latter, because, in a broad sense, every depositary of an escrow is the agent of both parties. Whether, in the present case, the depositary was or was not the agent of the grantee named in the escrow, to procure its delivery from the maker, was also a question for the jury.

(a)

4. In view of the law laid down in the first head note, the question of possession in this case is immaterial, for the reason that the parties claiming under the grantee named in the escrow cannot be protected unless either the grantor ratified its delivery, or the depositary was the grantee's agent to procure delivery. (Syllabus by the Court.)

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by Annie Dixon against the Bristol Savings Bank and others. From a judgment of nonsuit, plaintiff brings error. Reversed.

Alexander & Lambdin, for plaintiff in error. Thos. R. R. Cobb and Rosser & Carter, for defendants in error.

FISH, J. Annie Dixon was the owner of a lot of land in the city of Atlanta. A deed, signed by her, dated February 24, 1891, and purporting to convey the land to F. C. Hitch

ens, was recorded March 2, 1891. On March 16, 1891, Hitchens made a conveyance of the same land to the Bristol Savings Bank, as security for a loan of $2,000, and on the same day mortgaged the same property to one Barker, to secure an indebtedness of $100. This latter deed and mortgage were recorded on March 25, 1891. On December 31st of the same year, Annie Dixon brought her petition against Hitchens, Barker, and the bank, alleging that the deed from her to Hitchens was procured by fraud and without consideration; that it was never in fact delivered by her to Hitchens, or to any one for him, but was left as an escrow with a named depositary, from whom Hitchens had, by fraud and without performance of the conditions of delivery, obtained it; that, until two or three weeks before the bringing of the suit, she did not know of the existence of the two liens created on the property by Hitchens; that they were a part of Hitchens' scheme to defraud her of her property; that the property, at the date of the deed to the bank and of the mortgage to Barker, was in possession of certain parties as her tenants. She prayed for a cancellation of the deeds and of the mortgage, and for other appropriate relief. Hitchens denied all allegations of fraud or improper dealing on his part, and insisted that the land had been bought by him from plaintiff, and fully paid for. The bank and Barker answered that they had loaned to Hitchens the money represented by the deed and mortgage in good faith, and without notice or knowledge of any claim of plaintiff upon the property; that their conduct had been blameless and without fraud; that they had no notice or knowledge that plaintiff was in possession of the land by tenants or otherwise, and were informed that she was not so in possession and had no claim to the property. On the trial, the plaintiff introduced evidence tending to prove in substance the following: Plaintiff purchased the property in question in 1877, and subsequently made valuable improvements upon it, she and her tenants being in possession. Hitchens, by false and fraudulent representations of impending litigation, sought to persuade her to put the title to the property temporarily in him. To this end, he prepared a "note of obligation," "the substance of which was that he would restore the property to plaintiff upon the conclusion of the threatened litigation," as well as his promissory note for $2,700, and desired plaintiff to make him a deed to the property. Instead of following exactly this plan, plaintiff and Hitchens went to the office of an attorney, where Hitchens handed plaintiff the promissory note, and she executed a deed conveying the property to Hitchens. This deed she delivered to the attorney, with the express understanding and agreement of all three that he "should hold the deed until Hitchens paid the money." It was also understood between plaintiff and Hitchens that 31 8.E.-7

there was never to be any payment upon the note, or any delivery of the deed. Plaintiff had agreed to go with Hitchens to Texas as his housekeeper, and, within a day or two after the delivery of the deed to the attorney, she was sent to New Orleans by Hitchens, he following three days later. Before leaving Atlanta, plaintiff instructed Hitchens to place her property in the hands of a rent ing agent, which he did. One of her tenants was left in one of the houses upon the place. Between the time of plaintiff's arrival in New Orleans and the time when Hitchens joined her there, she received two letters, signed with the name of a friend of hers in Atlanta, but in fact sent by Hitchens, falsely stating that there was trouble in regard to her property, and that some of her furniture had been attached, and advising her to follow the advice of Hitchens in the matter. When Hitchens reached New Orleans, he took from plaintiff, by force and against her will, the "note of obligation" and the promissory note, and then returned to Atlanta. Plaintiff followed him to Atlanta, and called upon the attorney with whom the deed had been deposited. She asked where she could find Hitchens, and told of the theft of the papers. The attorney said that he was very sorry; that Hitchens had "given him $5 as a fee if anything should come up"; and that he could do nothing for her. She found Hitchens, and he promised to return the stolen papers if she would go to New Orleans; and shortly afterwards, in that city, he executed a paper, and gave it to her, together with her "title papers." She could not read, and did not know the nature of the paper Hitchens signed, but it looked like a deed, and she was told, if she would record it, her property would be all right. Subsequently, in Texas, when she, at the instance of Hitchens, put the papers in her trunk, the trunk was broken open, and the papers stolen. In August, 1891, plaintiff went to Danville, Va., where she remained until December, and then first learned that the property had been mortgaged. She came directly to Atlanta, and employed attorneys to protect her rights. While in Texas, she had received, through Hitchens, some of the rent due on her place, but nothing was ever paid her on the promissory note or as the purchase money of the property. The deeds from her vendor to herself, from her to Hitchens, to the Bristol Savings Bank, and the mortgage from Hitchens to Barker, were introduced in evidence; also, certain letters and telegrams. At the close of the plaintiff's evidence, the trial judge awarded a nonsuit as to Barker and the bank, and to this ruling plaintiff excepted.

1. "Although it is well settled that an escrow delivered without authority or obtained fraudulently passes no title to the grantee or obligee, there is some conflict of opinion as to the right of an innocent purchaser from a grantee who has obtained possession of the escrow without performing the conditions;

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