14 S.E.2d 121 | Ga. Ct. App. | 1941
The evidence authorized the verdict, and no ground of the motion for new trial requires the grant of a new trial.
2. While it is the right of counsel for the defendant in his argument to the jury to comment on the credibility of a witness for the State, in reference to the matters set out in the Code, § 38-107, and to accuse the witness of having committed perjury (Mitchum v.State,
3. The fact that a witness has been convicted of a crime involving moral turpitude is admissible for the purpose of discrediting his evidence. Ford v. State,
4. "The right of cross-examination, thorough and sifting, shall belong to every party as to the witnesses called against him" (Code, § 38-1705), and a substantial denial of this right is cause for the grant of a new trial. The scope of the cross-examination of a witness is not unlimited, but rests largely within the discretion of the judge. Clifton v. State,
5. The court sustained an objection to the following question propounded to Holmes on cross-examination: "He [referring to Detective Meek] told you Howard [the defendant] did not have any business getting a lawyer and fighting the case?" Meek appeared as a witness for the State, and gave testimony against the defendant; and it is stated that the purpose of this question was to show the interest and bias of Meek in favor of the prosecution. Assuming that the question sought testimony relevant for the purpose stated, its exclusion was not so prejudicial to the defendant as to require the grant of a new trial. The witness in fact testified in this same connection, in response to a question propounded by counsel for the defendant, that "He [Meek] said it would not pay Howard to get a lawyer." The court also refused to require *844
Herman Cooper, a witness for the State, who had testified that he saw the defendant driving one of the cars alleged to have been stolen on a certain street the night of the larceny, to make a diagram of the street, the traffic conditions thereon when he saw the defendant, and his position in reference to the car in which he saw the defendant, in illustration of his testimony. We think this was clearly within the discretion of the judge, and was not an undue restriction of the defendant's right of cross-examination. See Hart v. State,
6. There are other instances in reference to the alleged restriction by the court of the defendant's right of cross-examination of witnesses for the State. They present no new and novel question, and need not be discussed in detail. We have carefully examined these, and find in them no material error.
7. Where a witness on cross-examination is asked his reason for doing a particular act, his answer, if responsive, is admissible even though it may contain hearsay. The remedy of counsel is, not to move to exclude the evidence, but to submit a timely written request to the judge to instruct the jury that such testimony is relevant only to explain the witness's conduct, and not for the purpose of establishing the facts contained therein. Thus, where the effect of a question propounded to a witness for the State was to elicit from him the reason why he had arrested one of the defendants, the court did not err in refusing to exclude his testimony concerning information he had received of defendant's guilty connection with the theft of the automobiles, even though it contained hearsay.
8. One of the grounds relates to the admissibility of certain testimony of Staples, a witness for the State. This testimony was in substance that on the night the cars were alleged to have been stolen, the witness was at the house of P. H. Holmes, together with the defendant and his codefendant Bob Gentry, and that either the defendant or Gentry, the witness did not know which, asked Holmes for a knife. The objection to this testimony was that if the defendant did not make the statement it was hearsay. In this connection it appears that P. H. Holmes thereafter testified that it was the defendant who asked for the knife. "He [defendant] said he was going to get an automobile. He said he was going to strip the tires on the car." Furthermore, the evidence for the *845
State clearly disclosed a conspiracy between the defendant and Gentry to steal the automobiles, and the statement of either in the execution of the plan was admissible against the other. Smith v. State,
9. E. D. Meek, a witness for the State, gave the following testimony on direct examination: "I did not talk to Langley before we arrested Howard Corley. We had two or three conversations with Mr. Aiken as to Corley and the theft of this car, these two cars, and he said he believed the boy was crazy, and the case was put on over here and put off, and, as I understand, he had him [Corley, the defendant] examined." Counsel for defendant moved for a mistrial, at the same time stating: "If your honor does not see fit to grant a mistrial I move your honor to instruct and admonish this witness, as is your duty. I have never made any such statement as that." The court asked counsel: "You object to the answer made?" and, upon receiving an affirmative answer, requested counsel to state the ground of his objection. *846 Thereupon counsel stated his objection to the answer, and the court stated: "The court sustains the objection that it is irrelevant and immaterial in the case. That is the only ruling the court makes." No further insistence appears to have been made as to the motion for mistrial or the motion to admonish the witness, and we are of the opinion that under the circumstances these motions were waived.
10. Ground 17 complains that the judge erred in refusing to declare a mistrial in response to the defendant's motion, and in illegally admitting over objection indictment No. 47720 charging the defendant with larceny of two automobiles on September 6, 1937, with a plea of guilty thereon; that this evidence prejudiced the defendant's case; that the indictment was not alleged in the present indictment, and there was nothing in the indictment or in the evidence submitted to show any scheme or plan or connection between that indictment and the indictment in the instant case. Evidence of the commission of a crime other than the one charged is generally not admissible. To this general rule, however, there are various exceptions, such as relevancy as part of the res gestae, to prove identity, guilty knowledge, intent, motive, system, malice, etc.Cawthon v. State,
11. Ground 18 does not appear in the motion or in defendant's brief, and ground 19 is elsewhere covered by this opinion.
12. Ground 20 complains of a failure to charge as requested, with reference to the character of the defendant. Ground 21 complains of a failure to charge as requested, upon the subject of accomplice testimony. Ground 22 complains of a failure to charge as requested, with reference to impeachment of a witness voluntarily called by a party. Ground 23 complains of the failure to charge as requested, with reference to impeachment of witnesses by proof of contradictory statements. Ground 24 complains of a failure to charge as requested, on corroboration of accomplice. Ground 25 complains of the failure to charge as requested, on the subject of impeachment of witnesses by proof of bad character. Ground 26 complains of a failure to charge as to matters contained in grounds 22 and 24. The charge to the jury as a whole covered plainly and in substance the principles of law stated in the requests. The defendant was not entitled to have the court adopt his exact language, *848
and the failure to give the charges in the language requested was not reversible error. Summer v. State,
13. Ground 27 complains that the judge erred in charging as follows: "A witness sought to be impeached by disproving facts testified to by him may be corroborated by other testimony to the effect the facts stated by him are true." The defendant contends that this was an erroneous statement of law, was argumentative, confusing, and prejudicial. This ground is not meritorious. This court in McAllister v. State,
14. Ground 28 was decided adversely to the defendant by our decision with reference to ground 17.
15. Ground 29 complains that the judge erred in charging on the subject of "recent possession of stolen goods," in that the instruction placed the burden of proof on the defendant, who was the wrong party, such burden being on the State. The excerpt from the charge is in effect in the language of the charge in Cook v.State,
16. Ground 30 complains of an excerpt from the charge with reference to an accomplice. When the excerpt is considered with the charge as a whole upon this subject, as must be done (Cook v. State, supra; Brown
v. Matthews,
17. Ground 31 complains that the judge erred in charging the jury as follows: "I charge you further, that if the witness himself could have been convicted, that is, the witness Robert Gentry, *849
or has been convicted of the offense, either as principal or as an accessory, then in that event he would be an accomplice." The defendant contends that this charge was not applicable to the facts in the case, because Gentry had already entered a plea of guilty and therefore he was a self-confessed thief. He was not an accomplice of the defendant, unless the defendant himself was a party with Gentry to the stealing of the automobile. This ground is not meritorious. A plea of guilty stands upon the same footing as a conviction by a jury, and has the same force and effect as a verdict of guilty. Ford v. State,
18. Ground 32 complains that a portion of the charge with reference to the fixing of punishment by the jury was erroneous because it gave the jury the impression that they were required by law to find the defendant guilty and give him the maximum of five years punishment on each count, and was contrary to the Code, § 81-1104, in that the judge expressed an opinion. When the excerpt is considered in connection with the other portions of the charge on this subject, the judge made it clear that if the jury believed that the defendant had not been previously convicted, or if they had a reasonable doubt thereof, they would be authorized to fix the punishment between the limits of one and five years, and could also recommend misdemeanor punishment. This ground is not meritorious.
19. It is not proper to ask a witness on cross-examination whether he has a good or a bad reputation in the community, and the judge did not err in so ruling.
20. The court did not err in refusing to declare a mistrial because of the statement of the solicitor-general (in objecting to a line of cross-examination being pursued by counsel for the defendant) that counsel had no right to go into "all these petty details." Nor is there any merit in other grounds complaining of the refusal to declare a mistrial because of certain statements made by the judge in ruling on objections made by counsel for the defendant.
21. The grounds of the motion that have not been expressly dealt with have been examined, and are held without merit.
Judgment affirmed. Broyles, C. J., and Gardner, J.,concur. *850