60 Ga. App. 822 | Ga. Ct. App. | 1939
J. H. Dingier, Jack Gamble, and Kitty Gamble were jointly indicted for larceny of an automobile.' Dingier was tried separately, and was convicted of the offense charged. His motion for a new trial was overruled, and he excepted. Special grounds 1 and 2 of the motion are merely elaborations of the gen
It will be observed that the witness did not testify that Dingier had stolen this other automobile or had assisted in its larceny. He testified merely that he and Dingier “had” this car and used it in their joint whisky business, and that Dingier knew it was a “hot” (stolen) car. The evidence objected to tended to establish a plan or scheme of the two men to use stolen cars for the safer transportation of whisky in their unlawful whisky business. This is true because the evidence showed that this other car was the one in which Dingier and Gamble were riding on April 28, 1938, with a load of whisky, when the officers seized the car and arrested Dingier, Gamble escaping; and that on the following day (April 29, 1938), the car charged in the indictment to have been stolen by Dingier and Gamble was stolen by them. There is a strong inference from the evidence that they stole the car on April 29, because the police had captured their other ear on the preceding day. We think that the evidence as to the other-ear transaction was properly admitted. This is a much stronger case for the State than that of Green v. State, 172 Ga. 635, 640 (158 S. E. 285), where the court said: “Testimony as to other transactions disconnected with that with which the defendant stands charged in the indictment, in both time and circumstance, may be used to show motive, scheme, or plan, and indeed the very nature or animus of the defendant when necessary either to identify and fix the offense upon him, or indeed to disclose the intent with which the accused acted, if there be doubt as to the intent with which the crime was committed.” See Sheppard v. State, 44 Ga. App. 481 (3) (162 S. E. 413); Sanders v. State, 54 Ga. App. 238 (2) (187 S. E. 608); Garcia v. State, 52 Ga. App. 80 (2) (182 S. E. 526). Under the foregoing ruling, grounds 6, 7, 8, 9, and 11 are also without merit. Ground 4 complains that the court refused to allow counsel for the movant to propound, on cross-examination of the witness Gamble, the following question: “How many times have you been arrested?” We hold that the ruling was not error. This is a stronger case for the State than Reid v. State, 49 Ga. App. 429 (176 S. E. 100), where a witness for the State, on cross-ex
Ground 5 is based upon the admission of, certain documentary evidence. This, under repeated rulings of this court, can not be considered, since the evidence is not set forth in the ground either literally or in substance, or attached thereto as an exhibit. Ground 10 alleges that the court erred in excluding the testimony of a witness for the defense, concerning an alleged conversation between the witness and Jack Gamble, a witness for the State. The testimony was offered for the purpose of disproving Gamble’s testimony, and was objected to on the ground that the proper foundation for the evidence had not been laid. The judge ruled that he would sustain the objection until the foundation was laid. The ground fails to show that the foundation was laid by directing Gamble’s attention to the time, place, etc., of the alleged conversation. The ruling of the court was not error. “A proper foundation must be laid, in order to introduce evidence of statements made by a witness in a conversation, for the purpose of impeaching him.” Penn v. Thurman, 144 Ga. 67 (8) (86 S. E. 233). Ground 12 assigns error on the refusal of the judge to send to the jail and bring back Jack Gamble, for the purpose of again being cross-examined by counsel for movant, “at the close of the evidence on the third day of the trial.” The record shows that Gamble had already been twice on the witness stand, and on each occasion had been cross-examined by counsel for movant. The evidence had closed, and Gamble had been returned to the jail. Under these circumstances, the court did not abuse its discretion in refusing counsel’s motion. The remaining grounds assign error on several excerpts from the charge of the court. These excerpts, considered in the light of the. charge as a whole and the facts of the case, disclose no harmful error.
As to the general grounds and the elaborations thereof: While Jack Gamble, an accomplice of the accused, was the principal
Judgment affirmed.