19899 | Ga. Ct. App. | Oct 8, 1929
Dissenting Opinion
dissenting. 1 am of the opinion that the judgment should be reversed solely because the trial judge inadvertently violated the law prohibiting him from expressing or intimating his opinion as to what has or has not been proved, as alleged in the first special ground of the motion for a new trial. It appears from this ground that after the plaintiff in error had sought to impeach Teke Morgan, and while the State was seeking to sustain the character of that witness by the testimony of J. W. Potter, the following occurred: “By Solicitor Martin: Q. Mr. Potter, do you know Teke Morgan? A. Yes, sir, I know of her. Q. Do you know her general reputation in the community in which she lives? A. Well, yes, sir, I know pretty well, I reckon. I have heard a whole lot. Q. Well, is that good or bad? A. Well, I aint heard nothing so bad and 1 aint heard nothing extra good. By Mr. Shackelford: Q. Will von swear her character is good? A. No, I could not swear it’s good, nor I couldn’t swear it’s bad. I don’t know. By the court: Q. Do you know her general character for truthfulness in the community in which she lives? A. No, sir, I don’t know. By the court: Do you or not know her
I think it is clear from the foregoing that the court inadvertently violated the Penal Code, § 1058. Teke Morgan testified that she was one of the party that went to the church from which the goods were alleged to have been stolen, and that the defendant brought the stolen articles from the church and put them in the automobile in which she was sitting. Titus Allen, her half-brother, testified that he saw the “ stuff out of the church in her room,” and that she said she had bought it from a woman in Macon. Furthermore, there was evidence directly contradicting the testimony of Teke Morgan as to material matters. In short, her testimony was most material; her character had been attacked from several different angles; and any words or conduct of the court tending to lead the jury to believe that he leaned to the belief that Teke Morgan was worthy of credit must have been highly injurious to the defendant’s case. Therefore, in my opinion, the court committed reversible error in overruling the motion for new trial.
Lead Opinion
Jim Cronic was convicted under an indictment charging him and three other persons with larceny from the house, of articles worth less than $50. He excepted to the overruling of his motion for a new trial, based upon the general grounds and nine special grounds.
It being peculiarly within the province of the jury to pass upon the credibility of witnesses, and there being evidence that the defendant participated in the alleged theft, this court can not hold that the trial judge erred in overruling the general grounds of the motion for a new trial. See companion case of Allen v. State, 39 Ga. App. 642 (148 S.E. 167" court="Ga. Ct. App." date_filed="1929-04-09" href="https://app.midpage.ai/document/allen-v-state-5620010?utm_source=webapp" opinion_id="5620010">148 S. E. 167).
The first special ground of the motion for a new trial is not unqualifiedly approved by the trial judge, and therefore can not be considered by this court. Goolsby v. State, 35 Ga. App. 167 (2 a) (132 S.E. 245" court="Ga. Ct. App." date_filed="1926-03-02" href="https://app.midpage.ai/document/smith-v-international-lawyers-5617651?utm_source=webapp" opinion_id="5617651">132 S. E. 245); Brazil v. LaGrange, 37 Ga. App. 500 (3) (140 S.E. 782" court="Ga. Ct. App." date_filed="1927-12-13" href="https://app.midpage.ai/document/brazil-v-city-or-lagrange-5618987?utm_source=webapp" opinion_id="5618987">140 S. E. 782).
The other special grounds of the motion for a new trial disclose no error requiring a reversal.
Judgment affirmed.