Gilbert v. State

Nov 16, 1921
12696
Reporters:
, ,
Before:
Bloodworth
Bloodworth, J.

Robert Thweatt, Dewey Bland, and Henry Gilbert were indicted for the larceny of an automobile. Hpon the trial of the defendant, Henry Gilbert, a verdict of guilty was rendered against him, the jury recommended that he be punished as for a misdemeanor, and this recommendation of the jury was complied with.

1. The trial judge did not err, upon objection made, in re-’ fusing to allow a witness for the State (the owner of the stolen automobile) to answer the question, “How many times have you been convicted of selling whisky recently?” Nor did the judge err in stating, in connection with this ruling: “ She does not have to answer anyhow unless she wants to. You cannot *605make a person answer those questions. That is not the way to prove it anyhow.” Morgan v. State, 17 Ga. App. 125 (3) (86 S. E. 281).

2. No error was committed when a witness was permitted to testify as to the condition of the stolen automobile at the time it was recovered. Even if it was error to admit this evidence, the error was harmless, as ahother witness, without any objection being made thereto, testified to the condition of the car, and his evidence -showed its condition to be substantially the same as was testified to by this witness.

3. Exception is taken to the refusal of the judge to “rule out all of the evidence of the sheriff as being incompetent, immaterial, and irrelevant,” and because “ it does not in any way connect this defendant with this automobile.” This alleged error of the court will not require the grant of a new trial, for two reasons: (a) This exception went to the entire evidence of the sheriff, and a part of it was clearly admissible. Jones v. Teasley, 25 Ga. App. 784 (1-b) (105 S. E. 46), and cases cited. (6) This evidence was admitted provisionally, and as no motion was thereafter made to exclude it, counsel for the plaintiff in error will be held to have waived his objection thereto. Stone v. State, 118 Ga. 705 (9); Quinn v. State, 22 Ga. App. 632 (2), 634 (97 S. E. 84), and cases cited.

4. It is insisted that a new trial should be granted because certain language of the court, used in passing upon objection to testimony made by counsel for the defendant, “was calculated to give a jury of laymen ‘the impression that the court thought counsel for movant was making captious objections; and if the jury did get that impression from the language used by this court, it was calculated to prejudice them against the defendant on trial.” No motion was made to declare a mistrial because of the use by the judge of the language alleged to be prejudicial. “ Counsel having failed to make such motion, and having proceeded without objection with the trial, cannot, after conviction, raise the question as to the prejudicial nature of the remarks complained of in the motion for a new trial.” Perdue v. State, 135 Ga. 277 (69 S. E. 184). See also Woodall v. State, 25 Ga. App. 8 (3) (102 S. E. 913).

5. There is some evidence which, within itself and independ*606ently of the evidence of the accomplice, would lead to an inference of the guilt of the accused. In his statement at the trial the plaintiff in error admitted that early in the morning of the day on which the car was stolen he was in a cafe in Atlanta with the other defendants, and went with them in .the stolen car to Ocee, “ back in the mountains, ” and that one of them (Thweatt) asked him to drive the car. The car was recovered by the sheriff of Forsyth county. A witness testified: “ I had them together. Gilbert accused Thweatt of driving the car, and ‘Thweatt accused Gilbert. They both insisted that the other drove the car. Each man was claiming that the’ other drove the car.” Another witness testified that the accused “ said h e did go to the mountains with the boys” (those jointly indicted with him). Another witness swore that Thweatt said to the accused, “You just as well come on and take your medicine. You know you got the car.” While Thweatt was present the accused did not deny the above statement, but after Thweatt left he did deny it. When Thweatt said to the accused, “ You know you got the car,” had he been guiltless he would most probably have denied the charge. As he made no reply, the jury were authorized to construe his silence as an implied admission of his guilt. See Civil Code (1910), § 5782; McElroy v. State, 125 Ga. 37, 40 (53 S. E. 759.) In Davis v. State, 25 Ga. App. 532 (2) (103 S. E. 819), this court held: “ While the testimony of ’ an accomplice must be corroborated by other evidence, which directly connects the accused on trial with the perpetration of the crime, before such testimony will authorize a conviction of a felony, yet the law does not require that the corroborating evidence shall in and of itself alone be sufficient to warrant a verdict of guilty, or that the testimony of the accomplice shall be corroborated in every material particular. On the contrary, slight evidence that the crime was committed by both defendants, and identifying them with it, will corroborate the testimony of the accomplice and warrant a conviction.” Citing Penal Code (1910), § 1017; Evans v. State, 78 Ga. 351; Pritchett v. State, 92 Ga. 33 (1) (18 S. E. 350); Boswell v. State, 92 Ga. 581 (17 S. E. 805); Chapman v. State, 112 Ga. 56 (2) (37 S. E. 102); Dixon v. State, 116 Ga. 186 (7) (42 S. E. 357); Nance v. State, 126 Ga. 95 (1) (54 S. E. 932). The sufficiency or weight of corroborative evi*607dence is a question solely for the jury. In this case they have found it sufficient, and, their finding having been approved by the trial judge, this court will not interfere with the discretion of the trial judge in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.