48 Ga. App. 163 | Ga. Ct. App. | 1934
The indictment in this case contains two counts, the first charging that on September 30, 1931, in Chattooga county, Lee Eller and Boy Baker did “ verbally accuse EL F. McWhorter with the crime and offense of unlawfully opening United States mail, with the intent then and there to extort three hundred dollars in money of the value of three hundred dollars, which amount the said accused then and there demanded and did then and there threaten to prosecute said H. F. McWhorter unless the amount so then and there demanded was paid them. . .” The second count charges that “on the day and date and in the county aforesaid” the same defendants “did then and there . . verbally accuse J. F. McWhorter with the offense of forgery of the name of Floyd Thompson on a certain check, the exact description of which is unknown to the grand jury, with intent to extort from him, the said EL F. McWhorter, the sum of three hundred dollars in money of the value of three hundred dollars, and they, the said accused, did then and there threaten to prosecute the said EL F. McWhorter for forgery unless the amount then and there demanded of him was then and there paid.” The jury found a general verdict of guilty
Special ground 1 complains of the following charge of the court: “In determining what weight you may attach to the testimony of any witness, you may look to his or her appearance on the stand; take into consideration their manner of testifying, their interest or want of interest in the case, their feeling, prejudice, or bias, if anything of the sort has been made to appear, together with their opportunity of knowing the facts about which they testify.” This excerpt is assigned as error “for the reason that said charge . . failed to give to the jury the entire principle of law applicable to the weight to be given by them to the evidence of a witness, in that it omitted . . the question of the personal credibility of the witness so far as the same might legitimately appear upon the trial of said case.” To sustain this contention, counsel rely upon the case of Shankle v. Crowder, 174 Ga. 399 (8), 410 (163 S. E. 180), where the Supreme Court held that having undertaken to charge the rule for determining where the preponderence of evidence lies, as laid down in the Civil Code (1910), § 5732, the trial judge committed reversible error in omitting the provision that the jury may consider the witness’s “personal credibility, so far as the same may legitimately appear from the trial.” While the “preponderance-of-evidence rule” is always applicable in a civil case, it is inappropriate in a criminal case, where the State is required to prove the guilt of the accused beyond a reasonable doubt. Williams v. State, 125 Ga. 302 (3), 306 (54 S. E. 108); Helms v. State, 138 Ga. 826 (5, 6) (76 S. E. 353). It is ordinarily inapt to charge § 5732 in a criminal case, but so doing is not reversible error if the instruction appears to be harmless. Gale v. State, 135 Ga. 351 (5) (69 S. E. 537). In passing, it may be observed that while in the instant case the judge charged some of the ways of determining the credibility of a witness, as laid down in § 5732, supra, he carefully refrained from saying or intimating that the defendant’s guilt or innocence was to be determined by the preponderance of the evidence. It is also true that immediately after giving the jury the instruction complained of, the court charged them as follows: “If you find there are material conflicts in the evidence, or conflicts about material matters, you ought to endeavor to reconcile all such conflicts, if you can do so, so as to make each and every witness speak the truth,
Special ground 2 complains of the following charge of the court: “You will readily see from reading this section that it is not necessary or incumbent upon the State to show that the person sought to be blackmailed under this section was not guilty of an offense or a crime, but it is only necessary for the State to show that the person who was attempting to blackmail (and of course these are questions entirely for you) was threatening to accuse another of a crime or offense. As stated, it is immaterial whether the person sought to be blackmailed was guilty or not guilty. The question for the jury to determine is whether or not he was accused by the person who was attempting to blackmail him, if there was any such conduct — if he was accused of a crime or of an offense; and I charge you that must be done with the intent to extort money or other thing of value. It is immaterial as to whether or not the money was actually extorted or paid, the question being as to whether it was done with that intent or not.” The gist of the assignment of error is that the first count of the indictment charges merely that the defendants accused McWhorter of the offense of unlawfully opening the United States mail,_ and the court erred in instructing the jury that it was only necessary for the State to show that the defendants were threatening to accuse another of a crime. The indictment was drawn under section 118 of the Penal Code (1910), which reads: “If any person shall, verbally, or by printing or writing, accuse another of a crime or offense, or expose or publish any of his or her personal or business acts, infirmities, failings, or compel any person to do any act, or to refrain from doing any lawful act, against his will, with intent to extort money or other thing of value from any person, or if any person shall attempt or threaten to do any of the acts above enumerated, with the intent to extort money or other
Special ground 3 complains that the court charged the jury as follows: “If you should find those facts to be true, or that the
Special ground 4 complains of the following charge of the court: “If you should find the defendants did go to H. F. McWhorter in reference to some offense or offenses which it was he had committed, but that there was no criminal intent on their part, no intent on them- part to extort money from the said McWhorter,■ or on the part of aivyone else, whereby they might have been acting in conjunction with another person, if they were so acting, — ! say if you find there was no criminal intent on their part, it would be your duty to acquit them.” The criticism of this charge is that “the expression by the court therein, ‘or on the part of any one else/ was contrary to law, in that it placed upon the defendants a greater burden than that imposed by law, in that it rendered these defendants guilty of the offense charged if the jury should find that there was intent upon the part of any one else to extort money from H. F. Mc-Whorter; and there is no evidence in said case authorizing such charge.” In charging the jury that if there was no criminal intent on the part of the defendants “or on the part of any one else, whereby they were acting in conjunction,” etc., the court evidently had reference to. Floyd Thompson, whose name McWhorter was charged with forging. Mrs. McWhorter testified: “They [the defendants] told him [McWhorter] he had violated the law and forged his name on the check, and if he didn’t pay the $300 they would carry it to the Federal court. . . They said they came as friends to compromise between him and Mr. Thompson — that Thompson wouldn’t push the case if he would pay them $300, and
In special ground 5 “movants contend that their whole defense made by the evidence in said case was that they were seeking, at the request of Fred McWhorter, to dispose of for him a threatened action against him by one Thompson, and that they merely reported to- McWhorter what Thompson had said to them.” We can not agree with counsel that the defense indicated in the foregoing quotation was the “whole defense.” To our minds, the main issue in the case is whether or not Eller committed the acts charged in the indictment. Indeed, it is somewhat doubtful if the contention that the defendants were merely acting as the friends of Mc-Whorter in attempting to settle the prosecution referred to in the indictment is raised by the evidence in the case. Furthermore, even if it should be deemed that said issue was raised by the evidence, it occurs to us that it was really collateral to the main issue. There was no request to charge the defense referred to in this ground, and we hold that the ground discloses no cause for reversal.
It appears from the last special ground that after Baker had testified that McWhorter came to him and had a conversation with him in regard to the check, the court refused to allow Baker to state what McWhorter had said to him on that occasion. The evidence was objected to “unless it is connected with Eller.” Counsel for plaintiff in error then said: “We expect to show that Mr. Mc-Whorter came to Mr. Baker and asked him to assist him in this
We come now to the general grounds of the motion for a new trial. We have already stated our conclusion that the indictment charges the defendants with verbally accusing McWhorter of crimes, with intent to extort money from him. Mrs. Fred McWhorter, testifying in regard to the occasion when Baker and Eller came to her husband’s house and conversed with him, swore in part: “They [the defendants] told him that if he would pay them $300, they would keep it out of court; if he didn’t, they would take it to the Federal court, and that he couldn’t get out of it under five or six thousand dollars for opening the letter, and that he couldn’t get out of spending his life in penitentiary, and wouldn’t it be a pity to see his wife and daughter penniless and everything gone, and 'Now, damn you, old man, if you want to do that, just do that, if you don’t want to spend $300; we are your friends, and if you will pay this, we will take the $300 and settle this out of court, and then you won’t have to pay five or six thousand dollars.’ They said besides that he had forged his name on this check — forged Thompson’s name. They demanded of Mr. McWhorter $300. . . Mr. McWhorter did not offer at that time to pay that. After they had talked . . he finally took his foot off the fender of the car and said: 'You boys tell him I have done exactly what I thought was right, and I have paid him back the money for the casket, and if he gets anjr more money from me.’ They were referring to Mr. Floyd
Floyd Thompson, sworn' for the defendant, testified in part that he never authorized McWhorter to “indorse or cash that check;” that McWhorter told him about the check and paid him the $50
The $50 check in question, signed by the treasurer of Cherokee County Public Schools, payable to the order of F. H. Thompson and indorsed, “F. H. Thompson, H. F. McWhorter,” in McWhorter’s handwriting, was introduced in evidence. It appears from the record that H. F. McWhorter killed himself shortly after paying back to Thompson the $50 procured by McWhorter on said check.
Boy Baker, sworn as a witness in behalf of his codefendant, Eller, testified in part: “I had a conversation with Mr. McWhorter with regard to that [said check]. Mr. McWhorter came to me. I went to Mr. Eller and got him to go with me. He didn’t call Mr. McWhorter out. . . He came out to the car where I was sitting. Mr. Eller said there is absolutely nothing going to be
Eller’s statement to the jury was as follows: “I just recall being with Mr. Baker that afternoon. He asked me to go with him .and tell Ered McWhorter what the boy said; and I told him I didn’t think there was any danger of him prosecuting him after he paid him. Ered said he paid his money back, and said Thompson lost 'two or three hundred dollars. We both said he was done with it and wasn’t going to do anything. I told him what the boy said, and so did Mr. Baker. And that is all I know about the case.”
The gist of Lee Eller’s testimony in behalf of- his codefendant, Baker, was that Baker “did not threaten to prosecute Mr. Mc-Whorter in courts at all if he didn’t pay him money, . . did not make any threats to prosecute him for illegally opening mail;” and that he heard the entire conversation. The witness further swore: “I did not hear all of the conversation between Baker and Thompson. Mr. Thompson told Mr. Baker that Mr. McWhorter needn’t be uneasy, he wouldn’t give him any more trouble. That’s all I heard Mr. Thompson say in the conversation.”
The brief of evidence is long, and we have not undertaken to set out all the evidence in the case. We think, however, that we have stated enough of it to sustain our conclusion that the evidence supports the verdict.
Judgment affirmed.