Wasden vs. The State. No. 25.-BRYANT J. WASDEN, plaintiff in error, vs. THE STATE OF GEORGIA, defendant in error. [1.] An indictment for adultery and fornication against a single person, is, under the Code, good. [2] The doctrine of the reasonable doubt in criminal cases, extends to cases of every degree. Indictment, for adultery and fornication, in Jefferson Superior Court. Tried before Judge HOLT, June Term, 1855. Bryant J. Wasden was indicted for the offence of "adultery and fornication." On the trial, a motion was made to quash the indictment, on the ground that this offence could not be charged against one person. The Court refused the motion, and Counsel for prisoner excepted. After the evidence was closed, the Counsel for defendant requested the Court to charge-1st. That the circumstances. of the case should not only be consistent with guilt, but inconsistent with any other rational conclusion. The Court refused so to charge, but instead, charged as follows: "I will not charge you in the words of the request; but do charge, as I have done, that it is not necessary to prove the fact by positive evidence, but the same may be proven by circumstances; that you must be satisfied, to a reasonable certainty, of the defendant's guilt, from those circumstances," and defendant excepted. 2d. The Court was requested to charge, that if the Jury had reasonable doubts as to defendant's guilt, they ought to acquit him. The Court so charged, with this qualification: that in lesser grades of offences, such as misdemeanors, &c. this rule is somewhat relaxed. To this qualification, defendant excepted. Upon these several exceptions, error has been assigned. POTTLE, for plaintiff in error. Attorney Gen'l SHEWMAKE, for defendant in error. Wasden vs. The State. By the Court.-BENNING, J. delivering the opinion.. Can a single person be indicted for adultery and fornication? Section five of the tenth division of the Penal Code is as follows: "Any man and woman who shall live together in a state of adultery or fornication, or of adultery and fornication, or who shall otherwise commit adultery or fornication, or adultery and fornication, shall be severally indicted, and on conviction, such offenders shall be severally fined or imprisoned," &c. [1.] The offences here prohibited are all joint offences, Each is the offence of a man and woman acting jointly. The remedy here provided, is, however, a several remedy-is a separate indictment against each-the man and the woman. Had the remedy been also joint, there would not have been even the appearance of incongruity in the language of the section. But the Legislature had power to prescribe a separate suit for a joint offence. And they have only exercised that power in this section. The indictment, therefore, though against the man alone, was good. The first request to charge was, in the opinion of this Court, a request to charge what was the law. But the Court, although refusing to give that request in the words of the request, gave in other words, as we think, the substance of it. And there was, in this case, no motion for a new trial. Had there been, this point might, under the New Trial Act of 1854, be material. The second request was also, as we think, right. We know not of any law which makes the doctrine of the reasonable doubt in criminal cases apply not to "the lesser grades of offences," but only to the greater. The doctrine, as laid down by text writers, on evidence, extends equally to cases of every degree. Starkie's language is, "The distinction between full proof and mere preponderance of evidence, is, in its application, very important. In all criminal cases whatsoever, it is VOL. XVIII-34 Wasden vs. The State. essential to a verdict of condemnation, that the guilt of the accused should be fully proved; neither a mere preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose, unless it generate full belief of the fact, to the exclusion of all reasonable doubt." (1 Stark. Ev. 478.) This language has been adopted by this Court in Giles vs. The State of Georgia, (6 Ga. 285.) It has other sanctions. See 3 Greenleaf's Ev. §29, and notes. [2.] We think, therefore, that the Court below should have granted this request without a qualification, that excluded from the doctrine of the reasonable doubt the "lesser grades of offences;" and so, that there ought to be a new trial. The other exceptions were abandoned. Tribute of Respect to the Hon. WALTER T. COLQUITT. SUPREME COURT OF GEORGIA, The Honorable the Supreme Court met pursuant to adjournment. Present, their Honors, JOSEPH H. LUMPKIN, EBENEZER STARNES, and HENRY L. BENNING, Judges. The death of the Honorable WALTER T. COLQUITT, a member of this Bar, was announced this morning by the Hon. G. E. Thomas, who moved the appointment of a committee to prepare and report resolutions in relation thereto, which was seconded by Col. Seaborn Jones. Whereupon, the Court moved as a committee the following gentlemen, viz: Hon. G. E. Thomas, Col. Seaborn Jones, Wm. Dougherty, B. Hill, B. H. Hill, G. M. Dudley and T. R. R. Cobb, Esqs. The committee to whom was referred the duty of reporting to the Court a suitable preamble and resolution, in commemoration of the life and character of the Honorable WALTER T. COLQUITT, whom death has not long since removed from our midst, respectfully report: That our much beloved and sincerely lamented brother, the Honorable WALTER T. COLQUITT, was one of the peculiar men of his age. He was strongly and distinctly marked in character, and eminently qualified to leave his impress on the theatre of life. His indomitable will and great moral courage, placed him on high ground in all great emergencies. But, alas! "Death enters and there is no defence." Neither genius, nor talents, nor moral worth, nor beauty can escape the inevitable doom. "Dust thou art and to dust shalt thou return." Death is said "to love a shining mark." A mighty man has fallen! After a severe and protracted con Tribute Respect to Memory W. T. Colquitt. flict, which he bore with Christian fortitude and meekness, he yielded up his life to Him who gave, and whose sovereign right it was to take it away. The event, though not unexpected, was nevertheless painful. Who that knew him, did not love him! who that loved, does not lament his departure! His seat is here become vacant; his voice is here hushed, and that forever. Called away in the noon of his manhood-in the mist of his usefulness. What a chasm is made! not only in the Court, but also in the family circle, and in the public councils. Of his social qualities, how shall we speak? Of a warm and generous disposition, his heart leaped at once into every enterprise of benevolence; his charity embraced all conditions of want and wretchedness. In Of his intellectual endowments, we do not exaggerate when we say that he possessed a strong, vigorous, discriminating mind-an intellect which had lightning speed and power. the Court room or in the Senate Chamber, he was alike the fearless and able advocate, the firm and unyielding patriot. Always the same great original, he was, as occasion required, peculiar, striking, overwhelming. His eloquence sometimes resembled "the music," sometimes "the thunder of the spheres." As a Jury advocate, in the defence of life and liberty, he had few equals and no superior. More than all, he was a Christian-a sinner saved by grace. And if he ever wandered from the straight and narrow path, (and who has not?) none repented more sincerely, none made restitution sooner than he. Religion bore his fainting spirits up when all earthly props gave way. This sustained-this never failed him. "Our lif's a dream, a morning flower, Cut down and withered in an hour." But this Amaranthine flower blooms the brighter as the hand.of death approaches, and sheds a sweet perfume around the cold precincts of "the noisome tomb." "The chamber where the good man meets his fate, is privileged beyond the common walks of life, quite in the verge of Heaven." He |