Opinion
28279.
DECIDED APRIL 22, 1940.
Seduction; from Chattahoochee superior court — Judge McLaughlin. December 7, 1939.
T. B. Rainey, for plaintiff in error.
Hubert Calhoun, solicitor-general, T. Hicks Fort, contra.
1. "The law of fornication is not involved and should not be given in charge to the jury on a trial for seduction where the evidence for the State makes a case of seduction and the defense made by the accused is that he never had sexual intercourse with the person alleged to have been seduced." Smith v. State, 29 Ga. App. 216 (5) ( 114 S.E. 722); Kiser v. State, 41 Ga. App. 568 ( 153 S.E. 620). Under the foregoing ruling and the facts of the instant case, the failure of the court to give in charge to the jury the law of fornication was not error.
2. Under the facts of the instant case as shown by the record, which includes the judge's note embodied in the order denying a new trial, the refusal to declare a mistrial, on motion based on alleged improper remarks made in the argument of associate counsel for the State, was not error. Conceding, but not deciding, that the remarks were not authorized as legal deductions from the evidence, it is stated in the judge's note (which is controlling on the facts) that he rebuked counsel for making the alleged improper remarks, and instructed the jury not to consider them. and that counsel thereupon apologized for making the remarks, withdrew them, and asked the jury to disregard them. Under these circumstances it does not appear that the judge abused his discretion in overruling the motion.
3. The verdict was authorized by the evidence, and the refusal to grant a new trial was not error.
Judgment affirmed. MacIntyre and Guerry, JJ., concur.