Fox vs. Davis & Company. ceived the proceeds, or a portion, he would be bound to pay over the proceeds according to contract, and if in this county, on demand being made for the proceeds thus held, he failed to pay over the money, then a prosecution would lie against him for the proceeds thus held and not paid over." There is no evidence that Fox ever received any goods for sale on commission in the county of Fulton, and though the proceeds, in one sense, in the shape of a mortgage, of goods sent elsewhere from Louisville by his order, got into this county, and in his hands here, we do not think, in the absence of all proof that any part of the goods themselves ever were here, that he could have been convicted of this offense here. Yet we do think that the fact of such conversion of the mortgage here in the county of Fulton, if not sufficient to sustain an indictment for larceny after a trust, goes far to show probable cause for the prosecution, and in any event ought very largely to mitigate the damages. For the whole doctrine on the subject of malicious prosecution, see 1 American Leading Cases, 249, and note. 3. So we think, also, that the charge of the court on the subject of the advice of counsel, and the effect of such evidence in protecting the defendant, too broad, and that the jury may have been misled by it. The charge, in substance, was that if the client represented his case truthfully to counsel, and counsel advised him, and he acted on it bona fide, evidence of these facts would show probable cause, whereas, if the client misrepresented the case to counsel, his advice would be no protection. We think the jury may have understood by this that the advice of counsel would relieve the client from damages for a malicious prosecution, if his case, no matter how bad, was truthfully told to his counsel, and counsel advised the prosecution. This appears to be in the very teeth of our Code: Code, section 410. Yet we think the advice of counsel, though of itself, under our Code, no protection to the defendant in a suit for a malicious prosecution, is a circumstance tending to show, bona fide, the absence of malice, and the existence of probable cause; and as such McMath vs. The State of Georgia. circumstance it should go to the jury to be weighed by them with the other facts of the case. It certainly ought to be admitted for these reasons, as well as to mitigate the damages; but the court, we think, should be particular to say to the jury that, of itself, this advice of counsel cannot be a complete protection to the defendant, but goes before them as a circumstance in the case, which when weighed with other circumstances, may, according to the facts of each case, relieve the defendant, or make the damages nominal, or mitigate them more or less. On the whole, we think that the ends of justice will better be met by a new trial. We do not mean to express the opinion that there should be damages from the facts proven and disclosed in the record; certainly we do not mean to say that they should be heavy; but we think the plaintiff entitled to have the jury pass upon the facts in the light of the law as we have explained it; and with the law thus charged, as they shall find for or against the plaintiff, both he and the defendants must abide the verdict. Judgment reversed. CHARLES MCMATH, plaintiff in error, vs. THE STATE OF 1. Upon the trial of an indictment for rape, it was competent to show that the female upon whom the crime was alleged to have been committed was under ten years of age, though the indictment contained no such allegation. 2. It was competent to show that the defendant offered the mother of the girl alleged to have been violated, $5 00 to stop the prosecution. 3. It was error in the court in refusing to permit the defendant to show that such mother, who was a witness upon the trial, agreed to drop the prosecution in consideration of the payment of $5 00. 4. The statements of the infant to her mother immediately after the crime was committed, as to what the defendant had done, were admissible as a part of the res gesta, even though she was not alleged in the indictment to have been under ten years of age. Still, the infant should have been examined 55 303 56 504 58 333 65 411 73 84 55 303 103 9 McMath vs. The State of Georgia. by the court to ascertain if she was competent to testify, and if she was, she should have been sworn. 5. An indictment is good, although the offense is alleged to have been committed upon an impossible day. 6. Where, in an indictment for rape, the defendant is charged to have had carnal knowledge of the female forcibly and against her will, the allegation is sufficiently full without specifying the particular manner in which such carnal knowledge was had. 7. There was no error in the charge of the court to the effect that it was not necessary to show that the carnal knoweldge was forcibly and against the will of the female, she being a child under ten years of age. 8. Upon the trial of criminal cases, counsel, in their argument, may read law to the jury in the hearing of the court, subject to the correction of the court in its charge. Criminal law. Rape. Evidence. Infants. Indictment. Attorneys. Argument. Before Judge WRIGHT. Dougherty Superior Court. April Term, 1875. Reported in the decision. R. N. ELY, for plaintiff in error. B. B. BOWER, solicitor-general, for the state. WARNER, Chief Justice. The defendant was indicted for the offense of "rape," and on the trial thereof the jury, under the charge of the court, found the defendant guilty of an "assault, with intent to commit a rape." The defendant made a motion for a new trial on the several grounds set forth in the record, which was overruled by the court, and the defendant excepted. The following evidence was offered on the part of the state: Matilda Wells, sworn, says: Knows the prisoner; his name is Charles McMath; is the mother of the child that prisoner raped; knows of an injury committed on her child this year, in this county of Dougherty, directly after Christmas; the child's name is Dora Carter; the child is going on seven years old; does not know her exact age; one night, about dark, was cutting wood; asked the prisoner to cut some wood for her; he said he would; after he cut the wood, he asked McMath vs. The State of Georgia. witness to let the children go out and get the chips; her daughter, Dora, went out and brought in the chips; he then asked if Dora could go down to Joiner's with him, to get ten cents worth of candy; witness gave her consent; on Dora's return, she told witness that prisoner had tried to have connection with her; she was crying on her return, and witness took her out on the front steps, asking her company to excuse her; first knocked prisoner out of the door; knocked him three times; then found that her clothes were bloody; after she told what prisoner had done, examined her and found her clothes bloody; this was after all were gone; the blood was on her drawers; it came out of her private parts between the legs; examined Dora and found that she was bloody ; did not see anything that showed injury except the blood, which excited her; prisoner came back from Joiner's with Dora; after this, prisoner said he would pay her $5 00 if she would drop it; never heard prisoner say anything else about it; had put prisoner out of doors when Dora was examined by her; prisoner told her he would pay her the $5 00 for nothing; he denied, one night at supper, having anything to do with Dora, about two weeks before. This affair happened about dark; prisoner and Dora were gone about one hour; he never paid her anything, about this matter; witness told him to do as he pleased about paying her; does not know the day or month this act was done. Witness is a feme covert. Louis Ford, sworn, says: Knows prisoner; his name is Charles McMath; knows Dora well; heard of the affair between prisoner and the little girl, for which prisoner is being tried. On that night, first saw the child come into her mother's house crying; the little girl did not say anything when her mother asked her what was the matter; at first the little girl said that prisoner had unbuttoned her drawers; she said this in presence of prisoner, who was sitting in the house; the mother asked what did prisoner unbutton her drawers for; prisoner said: "I never done it for nothing." Witness saw no appearance of violence about the girl; did not examine her. The mother did not take the child outside of the door, while McMath vs. The State of Georgia. witness was there; prisoner did not say that he did not unbutton the child's drawers; witness, prisoner, the mother, Dora, and another daughter of Dora's mother, were in the house at the time of their return from Joiner's. Matilda Wells, recalled, says: "She saw blood on the drawers, and where it came from her privates was bloody. The defendant introduced no evidence. The grounds of the motion for a new trial were as follows: 1st. Because the witness, Matilda Wells, was allowed to testify as to the age of Dora Carter. 24. Because the same witness, being the principal witness for the state, and the mother of the child alleged to have been injured, was allowed to testify that defendant proposed to give her $500 to stop the prosecution against him, over the objection of prisoner's counsel, in both instances. 3d. In not allowing defendant's counsel to ask Matilda Wells if she had not agreed to drop the prosecution if defendant would pay her $5 00. 4th. In permitting the same witness to testify as to the statements of Dora Wells in regard to the injury, and that defendant committed the injury. 5th. In refusing the following requests to charge by prisoner's counsel: "If the bill of indictment charges the offense to have been committed on October 10th, 1875, he cannot be found guilty." 6th. "If it is alleged in the bill of indictment that the act was committed with force and violence against the said Dora Carter, it is necessary that this allegation be proved; and if the state has failed to prove this, the defendant is not guilty. In order to convict the defendant the jury must believe, from the evidence, that the private part of the defendant was inserted in the private part of Dora Carter, and if the injury was done with any other instrument than defendant's private part, it is only an assault and not rape, and the defendant is not guilty." 7th. In charging the jury that if the female was under ten years of then it was not necessary to prove that it was age, |