Sloan vs. Briant.

that she would not have been a competent witness. She is a party, and that would have excluded her evidence. The question is, then, does the act of 1866 render her competent in this case? The answer to this question turns on the construction of one of the exceptions: Code, section 3855. That section enacts as follows: "Nothing contained in the preceding section shall apply to any action, suit or proceeding, or bill, in any court of law or equity, instituted in consequence of adultery, or to any action for breach of promise of marriage." Is this an action, suit, or proceeding instituted in consequence of adultery? The exception is as broad as language can make it. Any action, or suit, or proceeding, or bill, in any court, are the terms. Any, as if to embrace every posible case; any, to apply to every court. Well, if it had not been for adultery, this child had not been born; had not this child been born, this promise would not have been made after its birth, nor, if made before, would have been operative. Adultery is the cause, this contract its sequence. Whether it be the immediate or the remote cause is immaterial, if the suit be the consequence of adultery as the cause. The words, "in consequence," apply as well to the initiatory as to the proximate, cause of this suit.

In Cook vs. Cook, 46 Georgia Reports, 308, it was held that the husband was incompetent to prove the adultery of the wife in a divorce case, under this clause or section of the Code. The action of divorce was no more brought or instituted in consequence of adultery, than the case at bar was instituted for the same cause. Adultery was the cause, the suit the consequence, in each case. Nor will it do to say that, though she might be incompetent to prove the cohabitation, the adultery, she is competent to prove the contract. She was excluded altogether before the act of 1866; that act lets in certain parties to suits to testify, but still applies the old law of exclusion on account of being a party to her. Nothing contained in the preceding section" shall apply to any action instituted in consequence of adultery, is the emphatic language of the Code, section 3855. Nothing in the act of 1866,

Habersham vs. The State of Georgia.

therefore, shall apply to give competency to this party to swear. Well, she had no competency to testify at all in this case before the act of 1866; nothing in that act gave her the competency to swear in this case at all; if she did not have it before, and did not get it then by the act of 1866, it must fol- ' low that she cannot testify in this case as a witness at all. She was incompetent to swear to any single fact in the case before the act of 1866; the exception makes that act inapplicable to her, therefore she is still incompetent to swear to any fact in the cause.

Judgment affirmed.

JAMES HABERSHAM, plaintiff in error, vs. THE STATE OF GEORGIA, defendant in error.

1. It is error to charge the jury that they are in no sense judges of the law. 2. On the trial of a prosecution for aiding to escape from custody, the fact of custody is for the jury, and so also is the legality of that particular custody. The court should acquaint the jury with the needful rules of law to enable them to distinguish legal from illegal custody, and let them make the application thereof to the facts in evidence.

3. It is error to charge that the custody was legal if the state's evidence is true, or that if the jury believe the evidence for the state they must find a verdict of guilty.

4. Custody by a private person after a legal arrest without warrant, becomes, illegal if protracted for an unreasonable time, and whether the time was reasonable or unreasonable is a question for the jury, under proper instructions from the court as to the promptness which the law exacts in conveying the party arrested before a magistrate.

5. Cruel treatment of his prisoner by the captor may be considered (where there is evidence on the point) to illustrate the purpose of the arrest and the bona fides of the custody.

6. Custody voluntarily assumed by a private person without warrant, may be lawfully terminated with his consent, by turning the prisoner loose, especially if the latter be not guilty.

7. To make the violation of a lawful custody criminal, its legal character need not be positively known to the offender, if he has good reason to believe it, or is grossly negligent in the use of means to inform himself.

8. Actual guilt of the person held in custody for felony by a private person without warrant, is not indispensable to the legality of the custody, and

Habersham vs. The State of Georgia.

therefore neither his conviction nor his prosecution is a pre-requisite to convicting another for assisting him to escape. The question of his guilt is not otherwise involved than as throwing light upon the motive and lawfulness of his arrest, but for that purpose it is open to the consideration of the jury.

Criminal law. Escape. Arrest. Charge of Court. Warrant. Evidence. Before Judge TOMPKINS. Chatham Superior Court. May Term, 1875.

Hambersham was indicted for the offense of assisting a prisoner (name unknown to the jurors,) to escape from the custody of Lawrence Banks and Chatham Rodgers. The defendant pleaded not guilty. The evidence made, in substance, the following case:

On the night of June 13th, 1875, at about one o'clock, two clerks, Banks and Rodgers by name, arrested a boy in the house which connected with the store in which they were employed. They state that this boy, with some other person who ran off, broke into the house with the view of passing thence into the store; that they only struck him for the purpose of overcoming his resistance when it was sought to arrest him; that the boy had a sack over his head with holes for his eyes cut in it.

After his arrest he was tied, and according to the evidence of the defendant, whipped twice. Rodgers set up with him all night. In the morning Banks went to tell the proprietor of the store what had occurred. During his absence, according to the testimony of the state, at about eight o'clock, defendant untied the boy and took him away from Rodgers. Defendant said he would take upon himself the responsibility of releasing him. Rodgers said the boy had broken into the house. Defendant replied that he was a constable and knew the rules of law. Rodgers did not resist defendant as he was afraid of him. There had been a storm on the previous evening at about nine o'clock.

The boy, whose name was subsequently discovered to be Solomon Weaver, testified that he went through open doors into the house for the purpose of avoiding a storm; that he

Habersham vs. The State of Georgia.

went into a closet and went to sleep; that he entered before the shop was closed; that when discovered he was shot at, arrested and whipped; that when defendant came in the morning, he gave him this account of the transaction; that Rodgers then told the defendant to turn him loose, which defendant did; that he immediately gave himself up knowing he had done nothing wrong.

Defendant stated that on the night of June 13th, he was up very late, and in passing the house which had been broken. into he heard some one crying; that he peeped into the house and saw a boy tied; that he got up at twenty-five minutes after nine o'clock, A. M., and saw a crowd in front of the store; that he went down there and saw this boy who gave him his account of the trouble he was in, saying that Rodgers had whipped him for coming in and sheltering himself from the storm; that he turned him loose, telling Rodgers that he had no right to whip him; that he turned the boy loose by consent of Rodgers, who said he did not wish to have the boy dealt with by law, but would give him a few stripes.

The jury found the defendant guilty. A motion was made for a new trial upon the following grounds, to-wit:

1st. Because the court erred in charging the jury that they could find the defendant guilty notwithstanding the person claimed to have escaped had never been prosecuted.

2d. Because the court erred in charging that the jury were, in no sense, judges of the law, but must receive the law as given from the court, as law.

3d. Because the court erred in charging that they were not judges of the fact as to whether the custody of the escaped person was legal or not under the circumstances.

4th. Because the court erred in charging that the custody was legal if the evidence adduced for the state was true.

5th. Because the court erred in charging that it was the exclusive judge of the question as to whether the custody was legal or not in this case, under the circumstances and facts disclosed.

6th. Because the court refused to charge that if the jury

Habersham vs. The State of Georgia.

believed from the evidence that the holding of the boy was for an unreasonable time after his arrest, then the custody was not legal, and they must acquit.

7th. Because the court erred in charging that the jury could not consider the fact that the boy was being cruelly treated at the time he was released.

8th. Because the court erred in refusing to charge that if the jury believed that Rodgers, who had the boy in custody, told the defendant to turn him loose, then they could not find the defendant guilty.

9th. Because the court erred in refusing to charge that the jury could not find the defendant guilty unless they believed from the evidence that he knew the boy was held for a crimnal offense.

10th. Because the court erred in charging the jury, that in making up their verdict they could not consider the question whether the boy had or had not been guilty of a criminal of fense; but that if the boy was in custody of Rodgers, as the evidence for the state disclosed, although he may have been perfectly innocent of any burglary, still, if the jury believed the evidence for the state, they must find the defendant guilty. The motion was overruled and the defendant excepted.

J. V. RYALS, by brief, for plaintiff in error.

A. R. LAMAR, solicitor general, by W. G. CHARLTON, for the state.

BLECKLEY, Judge.

1. Logically considered, the trial of a criminal case is an effort to complete a final syllogism, having, for one premise, matter of law; for the other, matter of fact; and for the conclusion, the resulting proposition of guilty or not guilty. It is the duty of the judge to supply the jury with material for the major premise of this syllogism; and it is the duty of the jury to collect from the evidence the minor premise, compare the two, draw the conclusion, and declare it in their verdict.