55 Ga. App. 262 | Ga. Ct. App. | 1937
Where a plaintiff brought suit under the Code, § 63-307, on two notes alleged to be lost or destroyed, one for an unpaid balance of $35, and the other for $300, attaching to his petition what he alleged to be substantial copies of such notes, and the defendant admitted'liability on the first note, but denied execution of the $300 note, and filed thereto a plea of non est factum; and where the plaintiff testified that he loaned the defendant $300 on August 38, 1934, and-that for the same the defendant delivered to him, on September 35, 1934, an -executed note for $300, the court did not err in permitting the plaintiff to testify further, over objection of the defendant, that at the time of obtaining the $300 the defendant stated he “wanted the money to buy an automobile with.” “Evidence which is only indirectly relevant to the issue on trial, but which tends somewhat to illustrate it, and to aid the jury in arriving at the truth of the matter, should be admitted. Walker v. Mitchell, 41 Ga. 103. The rule in this State is to admit evidence which is of doubtful relevancy. Augusta Factory v. Barnes, 73 Ga. 318 [53 Am. R. 838] ; Dalton v. Drake, 75 Ga. 115; 8. F. & W. Ry. Co. v. Flannagm, 83 Ga. 580 [9 S. E. 471, 14 Am. St. R. 183].” Talbotton Railroad Co. v. Gibson, 106 Ga. 339, 336 (33 S. E. 151).
Where on the trial it was shown that the plaintiff had been living in the home of the defendant, his son-in-law, at the time of the alleged execution and delivery of the note, and that between the parties some discord .had arisen, and in response to a question from the defendant’s counsel, “Didn’t you leave out there?” the plaintiff answered, “Yes, sir,” the court did not err in failing to exclude, on motion of defendant’s counsel, the additional statement of the plaintiff, “I was gone from there. He told me I had to get away,” as the plaintiff when so questioned was entitled to- explain why he left the premises.
The court erred in admitting in evidence a withdrawal receipt, dated August 38, 1934, for $300, and signed by the plaintiff, which was offered for the purpose of showing that the plaintiff drew such sum from the bank for the purpose of lending it to the defendant. No issue being made as to the plaintiff’s financial condition, and the suit being, not on account, but on a note, such instrument was not admissible as having any probative value on the issue of non est factum. The same ruling applies to the
In making the concluding argument to the jury the plaintiff’s counsel stated: “You can’t afford to act in this case upon the testimony of a man like this defendant, who was arrested right here in the court-house yesterday by a deputy sheriff and carried to Koine, and the case had to be checked until he got back.” The court overruled the defendant’s motion to declare a mistrial, and instructed the jury that the argument was improper and that they should disregard it, and base their verdict on the evidence. Thereupon the plaintiff’s counsel stated that he withdrew the remark. '“The matter of declaring a mistrial for improper argument of counsel is very important, and the discretion of the trial judge should be liberally exercised in all cases where counsel abuse their privilege of argument by prejudicing the case of the opposite party. Manchester v. State, 171 Ga. 121 (7) (155 S. E. 11). No fixed rule may be laid down as to when improper remarks or conduct of counsel in the trial of a case are or are not sufficiently corrected by instructions of the court to the jury to disregard them, as this must be determined under the particular facts and circumstances of each case. This being a closely-contested case upon the facts, a mere rebuke of the counsel by the trial judge, and an instruction to the jury to disregard counsel’s improper statements, were not, in this instance, a sufficient correction of the injury done to the defendant to remove it from the minds of the jury. In our opinion this is an instance in which a motion for mistrial ought to have been granted. Veasey v. Glover, 47 Ga. App. 826, 828 (171 S. E. 732); Morris v. Maddox, 97 Ga. 575, 581 (25 S. E. 487).” Central of Georgia Railway Co. v. White, 49 Ga. App. 290, 291 (175 S. E. 407). The remark of counsel in the present case was totally without basis, so far as the record discloses, and was highly damaging to the defendant in representing him as a criminal; and the jury was left to speculate broadly as to the nature of his implied offense. Despite the action taken by the court and the formal withdrawal of the remark by counsel, it can not be said that the jury was not greatly prejudiced thereby. The court should have declared a mistrial, and erred in overruling the ground of the defendant’s motion for new trial complaining of the failure to do so. City of
After making the remark mentioned in the preceding paragraph, the plaintiff’s counsel, in another part of his argument, stated to the jury: '“When you come to consider the evidence of the plaintiff and the defendant in this case, I do not think you will have any trouble in preferring the testimony of the plaintiff rather than that of the defendant, in view of the record he has made in this county.” The court overruled a motion by the defendant’s counsel to declare a mistrial, but instructed the jury that the argument was improper, and that they should disregard it and base their verdict on the evidence; and the plaintiff’s counsel then withdrew the remark. The court erred in not declaring a mistrial, and in overruling the ground of the motion for new trial complaining of the failure to do so. This ground is controlled by the principles of law announced in the preceding paragraph 4.
Error is assigned on the charge of the court to the jury, as follows: "If you find that the defendant did, as contended by the plaintiff, borrow from the plaintiff the sum of $300, and deliver to the plaintiff a note substantially the same as that alleged in the plaintiff’s petition, and that that note provided for interest at the rate of eight per cent, per annum and for the payment of attorney’s fees of ten per cent, upon the principal and interest, as contended by the plaintiff, and that the alleged copy of the note attached to the plaintiff’s petition is a substantial copy of the original note, and that that sum, if borrowed by the defendant, has never been paid, as contended by the plaintiff, then the plaintiff would be entitled to a verdict at your hands for the principal and interest and attorney’s fees, if the note provided for attorney’s fees, and if you find there was a note as contended by the plaintiff.” It is contended that such charge was not a correct statement of the law, in that it did not negative that the plaintiff (if the
It was testified by the plaintiff that on the same night when the defendant gave him the executed note as alleged, the plaintiff put the note in his trunk for safekeeping, and did not know what became of it afterward; that about two weeks after putting the note in the trunk he made a search for it there, in order to show it to some members of his family, but that the note had disappeared, and a later search also failed to locate it. A suit on a lost note
The court erred in overruling the motion for new trial. As the ■case is being remanded for another hearing it is unnecessary to pass on the general grounds of the motion.
Judgment reversed.