Jester v. State

211 S.E.2d 909, 133 Ga. App. 652, 1975 Ga. App. LEXIS 2231

• Court: Court of Appeals of Georgia
• Decided: January 7, 1975
• Docket: 49566
• Status: Published

Opinions

Pannell, Presiding Judge.

The defendant was charged with a misdemeanor in that he "did commit the offense of bastardy, in that he had sexual intercourse with Bettye J. McGhee on or about the 15th day of January, 1972, as a result of which such female has been delivered of a bastard child, of which said accused is the father, which is probable [sic] will become chargeable to the County of Fulton, and the said accused upon being arraigned in the Criminal Court of Fulton County, on the 8th day of June, 1973, did fail and refuse to give bond for the maintenance and education of said child in terms of the law . . .” Upon arraignment on December 13th, 1973, he plead not guilty and upon his trial was convicted. He appealed to this court upon the overruling of his motion for new trial. Held:

1. It was error to admit evidence showing a prior warrant for the same offense was taken out by the prosecutrix and after a letter was written by her attorney to the defendant, the defendant paid the lying-in expenses and made monthly payments for maintenance through April 19, 1973, and when these payments began the warrant was withdrawn. While this is not direct testimony that the defendant was coerced into making payments to avoid prosecution or that it was agreed that if he made payments the warrant would be withdrawn; the evidence allowed can be viewed with no other conclusion. While voluntary compromises and settlements are favored in bastardy cases (Jones v. Peterson, 117 Ga. 58 (43 SE 417); Gresham v. Hewatt, 2 Ga. App. 71 (58 SE 309); Sybilla v. Connally, 66 Ga. App. 678 (18 SE2d 783)), yet "This evidence could have no relevancy to any of the issues in the case unless it was introduced for the purpose of showing an admission of guilt by the defendant, since the only issues in a bastardy proceeding are paternity and the failure of the defendant to give the bond or the security required (Curry v. State, 97 Ga. App. 702 (1), (104 SE2d 148)), and this evidence could not have been illustrative of either of these issues. However, it was not admissible in evidence as an admission of guilt since it appears therefrom that, if it was such, it was made with a view to compromise or to effect a postponement of the case and was, therefore, not made freely and voluntarily by the defendant. Code § 38-408. Smith v. State, 41 Ga. App. 341 (152 SE 916).” Simmons v. State, 98 Ga. App. 159, 161 (105 SE2d 356).

Fowler v. State, 111 Ga. App. 856 (2) (143 SE2d 553), relied on by the dissent, does not require a different ruling. There was nothing in that case to indicate or imply a compromise or settlement situation. In the Fowler case, the only evidence was when the prosecutrix testified she told the defendant she was pregnant and he told her that "he hated it.” The next time she saw him he offered to give her $200 to pay on the hospital bill. There was no threat of prosecution nor was there a withdrawal of prosecution after payment. The offer of payment in the Fowler case was not based on any circumstances indicating or implying an offer of compromise as is true in the present case.

Argued September 3, 1974 Decided January 7, 1975. Hill, Jones & Farrington, Edward L. Baety, for appellant.

2. The Code sections (Ch. 74-3) making provision for what is commonly referred to as bastardy proceedings were expressly repealed by the Act of 1973 (Ga. L. 1973, p. 697) which repeal became effective July 1, 1973. Repealed Code § 74-303 provides that when a putative father shall be brought before the justice of the peace, "he may be required to give security for the maintenance and education of the child until he arrives at the age of 18 years,” etc., "and if the putative father shall fail to give such security” the justice shall bind him over to the proper court for prosecution. Code § 74-9901 provides that if the putativefatherof an illegitimate child shall refuse to give security for the purposes enumerated (same as in Code § 74-303) he shall be guilty of a misdemeanor. Code § 74-9901 was not expressly repealed by the Act of 1973. Whether this Code section is repealed by implication, inasmuch as the provisions for requiring the giving of security have been repealed, it is not necessary to decide. The enumerations of error on this appeal do not raise any question in regard thereto and we make no decision thereon; nor do we decide whether the appellant would be entitled to prevail in a petition for habeas corpus based on a contention in that regard.

Judgment reversed.

Deen, P. J., Quillian, Clark, Stolz, Webb and Marshall, JJ., concur. Bell, C. J., concurs in the judgment. Evans, J., dissents. Hinson McAuliffe, Solicitor, James L. Webb, Ernest J. Hughie, Frank A. Bowers, Assistant Solicitors, for appellee.