*1 App. 812, 817 State, 62 Ga. Aycock v. con- been having in motion matters and all
This rehearing is for motion sidered, the concur. JJ., Townsend, Gardner
Denied. THE STATE. 32770. CORBIN Rehearing 1950. denied March Decided March 1950. in error. plaintiff for Lozier, F. Hall, Pearce & William Poole, contra. Solicitor-General, Hall, William Webb, Paul in- Corbin, Claude was defendant, P. J. MacIntyre, tried, dynamite. He of was possession the unlawful dicted for years from five serve two to convicted, and sentenced to motion $2000. He made pay a fine of penitentiary and to eight special grounds and general based a new trial and the defendant the motion grounds. The court overruled excepted. of following testimony The defendant contends that great take a deal Cording: H. “It would witness Robert pound explosion' fifteen hundred or a to move a
force
terrific
erroneously admitted
inches,”
distance
three
was
meter a
wit
objection
conclusion of the
over the
that was a
evidence
qualified
properly
had not been
ness and that
witness
opinion. The
give
testimony
such conclusion or
expert to
part
pound meter here referred to
fifteen hundred
was
mechanical
of the White Provision
machinery,
apparatus,
or
Cording
testified:
that he
Company. The witness
also
plant
engineer
Company,
at the White Provision
at
chief
whose
alleged
place;
employed
took
that he had been
years;
sixteen
he had
there
about
received his education
Carnegie
Technology,
graduated
from
Institute
which he
degree
with
in mechanical
first
engineering;
that he
Westinghouse installing machinery, etc.,
worked
then with
he went
Department, before
Company,
&
Construction
Swift
engineer
chief
of the
that as
Company;
with White Provision
charged
duty
with the
Company he
Provision
White
new
equipment,
all
repair and installation of
maintenance
*2
anything
do with
to
repairs
buildings,
old
buildings,
to
ap
electrical
including mechanical devices
physical plant,
expert and
facie
prima
paratus.
qualified
This witness
his
upon
based
opinion
subject,
this
give his
on
was entitled to
upon
stated the facts
Additionally,
the witness
observations.
expert
When an
testifies
opinion
predicated.
which
his
question
necessary
knowledge,
is
facts
his
within
expert may
hypothetically. An
base
propounded be stated
observed. Sims v.
which he knows
has
opinion upon facts
78
(148
App.
769);
State,
E.
McDowell v.
State,
10,
Ga.
13
S.
40
(50
Metropolitan
App.
2d, 633);
Ins. Co. v.
Ga.
116
S. E.
Life
(5
Clary
State,
(2)
2d, 214);
8 Ga.
Saul,
Ga. 1
S. E.
v.
189
(113
State,
669,
Ga.
674
S. E.
(2) (68
615);
v.
153
92
Davis
(56
1017);
S. E.
Wallace v.
11);
State,
v.
“On a motion for
question
a new
trial
whether
judgment should be reversed on account of the
introduction
*3
injected
evidence
into the
which the
case
defendant contended
was irrelevant and immaterial,
the
defendant’s statement
the whole evidence, properly admitted, that
introduced before
and that introduced after
ruling
the
on the admissibility
evidence in question, may be considered in determining the
'relevancy and materiality of such evidence. Fuller v. State,
(2),
(30
3. ground complains 3 permit the refusal to. Cording, witness on cross-examination, to following answer the question: far “Now, you as know, they as could have made changes in the physical surroundings of the area between you time were out there, Thursday on morning, and time “ pictures these were made?” The rule is that judge 'the trial had a discretion to right control of cross-examination with in reasonable bounds, and an exercise of this discretion not will be controlled by reviewing court, unless Rogers abused.’ State, App. v. 18 (2) (89 Ga. 332 460); S. E. Granison v. State, App. (174 216 S. 636); E. Fields v. State, 46 Ga. (3) (167 337).” Aycock prior cross-examina think that We had knowledge the witness sufficiently developed what
tion had surroundings of in change made had been to whether Thursday on there witness was that area between time the were made and question in pictures morning the time the in not al discretion abuse his think court did we not this on cross-examination lowing continue defendant more in the here, which was by asking question matter in form of cross- than arguing witness with the nature re that committed think court examination. doWe question answered. allowing the error in not versible de of the court’s failure ground complains Special made improper certain remarks a mistrial on account clare progress of the during the trial. by the assistant solicitor are court complained action taken and the remarks “Q. Hall, (By Mr. Assistant Solicitor William as follows: [1.] you many explosions State): how ‘Mr. Lozier asked I whether your lifetime. ask you you, had observed that you explosion Atlanta, here in shortly dynamite after this Geor Moultrie, down in (cid:127)—your company also had by the in connection with strike dynamite used gia, which Geor progress Moultrie, down C.I.O. Union which was State): Cording, gia?’ (By A. Mr. Witness Robert H. Cording.’ Mr. just minute, Mr. ‘Yes, Sir.’ The Court: ‘Wait movant): object I (Counsel Honor, ‘Your to that Lozier highly immaterial; ground is irrelevant and it’s case and ask prejudicial to the defendant *4 sus T overrule the motion. I declare mistrial.’ The Court: a disregard ques jury the objections the and I instruct to the tain by witness and answered the and answer last asked the tion Q. Hall, Assistant (By William Solicitor [2], witness.’ Mr. the State): go they Moultrie at the time had you the ‘Did (By Cording, A. Mr. Robert Wit explosion down there?’ H. (Counsel Movant): State): Lozier 'No, Mr. ness sir.’ The stated object question. that solicitor has ‘Your Honor, it’s explosion Moultrie. I think an a fact that there was ask the in the case and I highly prejudicial the defendant T mo The Court: overrule the declare a mistrial.’ court to your stricken, question T the tion.’ Mr. Lozier: ask that Honor, ground on the irrelevant and immaterial. Mr. Wil is liam Hall: your T record. You ask Honor to strike it from the ” can ground come down.’ The stricken.’ court: ‘It This really objections rulings contains to two of the trial court. question posed first by the under evidence solicitor, assistant the and the case, inaptly worded, circumstances the of this but court interrupted question, itself the answering witness in upon the objection ques of counsel for defendant tion and mistrial, motion for the motion court overruled disregard declare mistrial and instructed jury question and answer. We think view of the corrective by measure taken it did error not commit reversible in refusing grant Herring motion for mistrial. v. State, App. (2) (72 600); E. v. State, S. Daniels 58 Ga. (3) (199 572); v. State, App. 153, Loomis 78 Ga. 13).
As to the second question complained of ground, in this coun- sel for the defendant had asked Cording, witness, State’s Mr. many dynamite how explosions he had seen in his lifetime for purpose adversely reflecting expert. his credit The State question could him on regarding redirect-examination particular dynamite explosions purpose seen, had for the explaining if neutralizing, could, effect of testi- mony on cross-examination. Cameron (3) (18 S. E. 2d, And, if the assistant solicitor to, intended could, connect question with the fact witness that the Cording dynamite had seen explosion in Moultrie, question improper. would not have been However, the coun- defendant’s objected ground sel question to this on the the assistant solicitor had stated a fact that there was an in Moul- trie, prejudicial which highly to the defendant case in this and had asked the court to declare a mistrial. Thereafter question assistant requested solicitor be stricken by asking court and the court struck it. We do think question, of under the circumstances, shows cause for mistrial. special ground In following assignment 6 the of error is
made: following “The material ad illegally evidence was objection jury, movant, mitted the court to the over *5 Cor- with Claude I talked Smith: ‘When Officer E. wit: to now are concerning case we trial, on bin, the defendant him Capp to with, that comes trying, stated, to start off Mr. he carry employees transportation and wanted an automobile on Street other, from out Peters Swift picket one line to the from he he Road; Mill said that Iiowell Provision over White on renting could, had been she rent a but mother couldn't car his Mrs. got mother, and there U-Drive-Its, they so went over green and rent Corbin, go up Belle U-Drive-It Isle paid Capps Mr. they day; used he said that two-door; this then Mr. again and paid for it Kirkpatrick it one Mr. time, being men leader one them paid again, Foreman for it each time, they back second went in the C. I. 0. Union and so go back they suggested they they again, wanted the car it back carry in, the car back check get mother and Corbin’s they did; day, use the next which in and it back out to check and, time, she the car they house took at went to his and son presence of her Corbin the statement Mrs. made her that, Capps assured and so that she didn’t want to do Mr. go she ahead get any trouble if would boy wouldn’t into — Capps Mr. Corbin Mr. car, did; and rent which she Capitol house on stayed house, there at Mrs. Corbin’s returned car; she with the after she Avenue, 447, until returned got car, Capps car, he Mr. went back over with the Street, tent, line, tent on picket and—the Peters Swift’s tent negroes and Provision picked up three went White stayed they Mill there he stated that on Howell Road and slept car they around while and laid down for a Capps on then while, messed around there until Mr. later up then Street, picked went back to the tent on he Swift Peters negro boys; two he didn’t know their he said names, time boys' names; up know picked boys he didn't these two right Bridge running along went Mill Road out Howell stopped building, side the White Provision northwest around, back, looked over and said he drove drove the situation again then stopped block and come back and drove around the negro boys, he went boys, two said under two down package of dynamite with the he they had; the railroad they me from where had obtained the dynamite; stated to *6 stated that he remember didn’t who told him where it was but package, said the “You will find it in hid bench, the tent under a picket under the in the tent,” sawdust and said that’s where he it, right there, he found I tried tell get and him to me itwho was that told him it prepared ready go was there and and and he said couldn’t de he remember that. to whether As this fendant, Corbin, per stated he went whether in the tent and sonally got dynamite negroes in; or whether one of the went well, to I that, the best can recollect on he went in there and this boy, Clark, negro Clark, got he told him, “We said, have job do”; Corbin went dynamite in and found the right where the man had him it forgotten told and I was have whether put he said he it in negro put the car or the it in or there vice versa, one did; of them got he said the three them in the car and left and beyond drive out bridge Road, this on Howell Mill right by the side of when Provision; White arrived they out there, go this said defendant that he out of the car, two negroes got out of the car pre and went under bridge, down pared dynamite and one them didn’t come up, back have got a match and he went across over there and a match negro from a on working a—that was slaughter over there at that ing pen, or abattoir, and then he back went down there and when he did, negro after the match, negro loaned him started walking back toward Corbin and over- Mr. Mr. Corbin walked to him said, expect and you “I walking had better be back yonder way,” they and he said were under there a few minutes they running come back up go,” said said, “Let’s got he under steer-wheel, car, himself, drove the one of negroes got in the got back seat and the other one the front seat with him, they up right went the first street turned Station, went to Peachtree out Road, out Peachtree come way. back into town that He dynamite stated was taken out by negroes one of the and carried down there up gas blow the main that runs into the White Com Provision pany. As to whether put he stated dynamite whether they the gas near main that runs into the White Company: Provision I can’t recall that he even knew exactly negroes put where it, go he did not down under bridge himself, he stayed up Q. there and watched. say 'Did he anything about down ignited they dynamite while was was
whether or not the particular question; asked I asked him that ‘Well, A. I there?’ he said no, off; when went him did he hear first high speed and went rate of didn’t he left there next employees later and he heard some street off. whether dynamite go did morning, As that he heard the office county police brought mother into the defendant’s this while defendant on the of this courthouse third floor going her house but, as to out to present there there: She was she arrived whether in, Mr. did. As to bringing her Reed making custody down there the defendant. was while presence times. In the statement; present she at all *7 this respect with to mother made statement defendant, his about; she made the state green automobile that she testified really the she the rented first time ment that at time she it transporting pickets they the car for thought going to use were they after come back the second other; then, from line the to car, then and re-rent time and wanted turn it back to place something fixing to take and she asked she like was felt Capps when Mr. assured them to do it said was not and that get any you your boy “I into her that will assure that won’t arrested subsequently In case we trouble.” connection with this made a Clark. Albert Clark negro by name Albert of presence de concerning of case in the this statement to us refuta any did not make denial or fendant and this defendant made. Clark made when it tion of the statement that Albert was any make denial or refutation of This defendant did not presence.’ my mother made statement that his offered, “(a) it objected to the evidence before was Movant cross-examining witness, Smith, Officer E. after as to alleged confession surrounding making of the circumstances then Smith, and by movant to Officer movant or admission said urged cross-examining Smith, before and there after Officer objection: grounds ‘Your I ob- following Honor, give signing testimony may as to the ject any the witness questioning ground written alleged statement made, freely voluntarily shows it was witness pressure, emotional of emotional made under circumstances it.’ not be held to strain, a man should such that prior “In the cross-examination of S. E. Smith Officer testimony movant, as to made to him Officer statement testified, in part: brought Smith ‘Then him back here we up third floor and until time he had denying was still he anything brought with to do it. When we back him here County the third him floor the Fulton we Courthouse, took R,eed, down to the Jones, detectives office and O. T. Hubert Burton Carroll, mother, myself pres- Mrs. Corbin, his were ent. present statement; His mother was he when made this weeping she and crying, begging was the she one that was him to tell truth . I about it . did him not tell it would be a him got lot easier on if we written him; statement from ironing we kept telling him him anything into said that he freely voluntarily would have and he broke started telling presence the truth his mother and then we asked him put would in writing, knowing he would that it be used ’ against court; him in will.” said, “I
“Movant shows that at the time State’s 4 was Exhibit No. evidence, tendered objected movant admission; State’s its document, a written Exhibit was characterized confession as by movant, objected . . Movant to the evidence as soon offered, and at the time it was then urged and there before following grounds objections: court the ‘Your Honor, object grounds, the admission of it on the that under testimony of the witness, was taken at time when con- his mother was *8 fined in room police a small with four officers and his mother was grounds crying; on the that any admission or taken confession under circumstances like is not voluntary that under the ” party giving free will the the of information.’ comprehensive
For a discussion of the relating the rules confessions, Bryant (13 admission of see v. State, 191 686 Ga. S. (35 2d, E. v. 820); Collins 199 State, Ga. 830 2d, E. 452); S. State, (191 App. 272). Mathis v. 729 727, Apply- ing the in these rules stated to the cases facts case, of this ground motion for of the a new trial is not meritorious. ground special
6. In 7 it contended is that a mistrial should argument have been declared on account of of State’s counsel dastardly that one of the “This was most acts in the of annals history.” Fulton County’s We think that the State’s counsel construction within the domain of the was case the instant distinguished from unwarranted abuse evidence as the of legiti- record the in the the of facts going not outside was evidence' Under the therefrom. deducible inferences mate argue counsel to that the State’s just legitimate is of Fulton in the dastardly acts annals most one was argue for the accused to it is counsel County’s history as acci- man was he is an innocent part employer’s up this of the had blown dent, anyone or that if was he or that defendant, was than plant, someone line picket member of the being persecuted because plant on strike. Both picketing I. were 0., the O. who may the evidence. Neither drawn from would be conclusions legitimate argument, limits right. Each within be overruling motion a mistrial. err the trial court did not (52 330). 2d, S. E. Byrd v. Ga. State, 78 vol- may lawfully be had a.free and “A7. conviction untary though the corroborated same otherwise confession corpus by proof Wimberly State, delicti.” than 162). (1) (31 Having of this held division 5 Ga. S. E. find opinion jury was authorized to there was by confession, freely voluntarily made, the defendant, possession of charged in the of unlawful indictment offense corpus think dynamite, and since we delicti established de- by evidence, jury was authorized to find that charged con- with crime own fendant was connected his fession; surely, strong proof own is as and, confession strongest cir- show his connection therewith as chain of cumstances. Miller v.
The evidence authorized verdict. Special grounds expressly 4 and 8 were abandoned in not, brief of for the defendant and have been therefore, counsel considered. overruling foregoing did not
For reasons the court err the motion new trial. for a
Judgment concur. Townsend, JJ., Gardner and affirmed. Behearing. Motion roe
On *9 plaintiff in error J. in mo- P. contends MacIntyre, rehearing that this overlooked tion for a the case of Reid 657), ruling its division opinion here in question. carefully We considered that thought case but brought facts of the instant case under Herring the rule stated in v. State, (2) (supra), and not the rule case, stated the Reid supra. all This and having matters the motion been considered, the motion rehearing
Denied. concur. Gardner and Townsend, JJ.,
CASES DECIDED IN' THE COURT OF APPEALS OF GEORGIA THE
AT *11 TERM, APRIL 32815. McCARTHY v. HIERS et al. April
Decided
Wilson & Wilson, for plaintiff. Bennett, Pedrick & Bennett, Joe Schreiber, Mack Barnes, defendants. brought C. J. This Superior action was Ware
Sutton, by McCarthy against Court Hiers, Clinton Jack Hiers, Cecil George partners trading Thigpen, Planing Mill Hiers injuries Company, personal by plaintiff when sustained building collapsed. the roof of the defendants’ alleged petition The material facts in the are as follows: occupy building 721 Albany Way- defendants Avenue in galvanized open construction with -Georgia, sup- roof cross, girders. building is a boiler room in ported steel There large it, extending through with a boiler therefrom large July 16, in the roof is a smokestack. On opening paint had contracted with P. R. Holtzclaw the defendants