11 S.E.2d 688 | Ga. Ct. App. | 1940
1. "Oaths to affidavits ordinarily are not required to be administered with any particular ceremony, but affiant must perform some corporal act before the officer whereby he consciously takes upon himself the obligation of an oath; but it is not essential that he raise his hand." 2 C. J. *576
S. 959, § 20. The act of the officer and of the affiant must be concurrent, and must conclusively indicate that it was the purpose of the one to administer and the other to take the oath, in order to make the affidavit valid. McCain v. Bonner,
2. "The examination preliminary to the introduction of secondary evidence of a lost original is left largely to the presiding judge; and where he is satisfied and admits the secondary evidence, it must be a clear case of abuse of discretion to require the interference of this court." Orr v. Dunn,
3. The failure of the defendant in a criminal case to introduce any evidence does not preclude the State's counsel from making an argument to the jury, but merely grants to the defendant's counsel the right of opening and closing after the testimony on the part of the State is closed.
4. The seal of the notary public is prima facie evidence that the legal formalities of the notary public's appointment before the proper person have been complied with, and is prima facie evidence of the authority of the notary public to administer oaths. These presumptions are rebuttable.
5. The judge did not commit reversible error, as contended by the defendant in special ground 4, in failing, in the absence of a request, to charge the jury relatively to flight.
6. It was not error for the judge to fail to charge the jury the definition, or enter into any detailed explanation, of what is meant by the phrase "reasonable doubt." Floyd v. State,
7. The failure to charge as to the credibility of witnesses, in the absence of a request so to charge, is not ground for a new trial; nor is it error, in the absence of a request, to fail to charge that in the commission of a crime there must be a joint operation of act and intent or criminal negligence.
8. The general rule is that it is improper for the judge to charge the jury Code § 38-415, which deals with the right of the defendant to make a statement to the jury and the weight to be given such statement, if made; for such a charge would not be pertinent to the facts in the case.
The Code, § 26-4003, declares: "False swearing shall consist in wilfully, knowingly, absolutely, and falsely swearing, either with or without laying the hand on the Holy Evangelist of Almighty God, or affirming in any matter or thing, other than a judicial proceeding, by a person to whom a lawful oath or affirmation has been administered." The punishment for false swearing is from three to ten years. With reference to the general grounds and special ground 9, the defendant contends in his brief, that under the evidence he could not be legally convicted of the offense of false swearing, for, under the evidence, when he was told to hold up his hand and was then asked whether or not the same was true, he made no reply; and that, "while silence might be chargeable against the defendant as an estoppel, it certainly could not be the equivalent of an overt act in a criminal offense, and the offense of false swearing is one requiring an absolute overt act." In the making of an affidavit of the character in question, it is not necessary that the affiant hold up his hand and swear, in order to make his act an oath. If both the affiant and the officer understand that what is done is all that is necessary to complete the act of swearing, his act is an oath in legal contemplation. McCain v. Bonner,
2. It was not error to admit in evidence a copy of the security deed from the defendant to Mrs. Sheffield. The State proved that the original deed had been lost, and proved by the testimony of E. L. Sheffield, Mrs. Sheffield's husband, and John H. Hudson, attorney for Mrs. Sheffield, that they had made a diligent search for the original deed, and that it could not be found. It further appeared that Mrs. Sheffield was sick at the time of the execution of the deed, and that Mr. Sheffield handled the matter for her. "The examination preliminary to the introduction of secondary evidence of a lost original [deed] is left largely to the presiding judge; and where he is satisfied and admits the secondary evidence, it must be a clear case of abuse of discretion to require the interference of this court."Orr v. Dunn, supra. It does not appear that the judge abused his discretion in this instance. This ground is not meritorious.
3. Special ground 2 complains of the court's allowing counsel for the State, over objection, to argue the case to the jury at the conclusion of the evidence, when defendant failed to make any statement to the jury or introduce any evidence or argument of counsel. Both the State and the defendant in a criminal case are entitled to argue before the jury. The failure of the defendant in a criminal case to introduce any evidence does not preclude the State from making an argument to the jury, but merely grants to the defendant's counsel the right of opening and closing after the testimony on the part of the State is closed. Code, § 27-2201. This ground is likewise not meritorious. *580
4. Special ground 3 is to the admission in evidence of a certificate signed by the State Librarian to the effect that the notary public before whom the alleged oath was made was duly authorized to attest deeds, etc. The chief objection to the introduction of the certificate "is that it is not a certified copy of the commission issued. It is merely a statement certified to by the State Librarian as to the existence of a record in her office, which does not purport to be a true copy of the record under the statutory requirements." The purpose of a notarial seal is to authenticate the document to which it is duly affixed. "The seal of the notary public being evidence of the genuineness of his signature and of his official character, no further authentication is required." Ballew v. Broach,
5. The judge did not, under the facts of this case, commit reversible error, as contended in ground 4, in failing to charge the jury relatively to flight, in the absence of a request. The flight of the accused is a circumstance which may be considered by the jury in determining his guilt (Jones v. State,
6. It was not error, as urged in ground 5, for the judge to fail *581
to charge the jury the definition, or enter into any detailed explanation, of what is meant by the phrase "reasonable doubt." Floyd v. State,
7. In the absence of an appropriate request, the omission to instruct as to the rules by which to test the credibility of witnesses is not cause for a new trial. Freeman v. Coleman,
8. Grounds 7 and 8. The judge did not commit reversible error in failing to charge the jury that "the failure of the defendant to make any statement denying the charge should not be considered by the jury as any admission of guilt, or be considered by them in passing upon the guilt or innocence of the accused." Judge Powell in Carter v. State,
9. The evidence authorized the verdict, and the judge did not err in overruling the motion for new trial.
Judgment affirmed. Broyles, C. J., and Gardner, J.,concur. *582