44 Ga. App. 276 | Ga. Ct. App. | 1931
The indictment in this case charges Jack Martin with the offense of bribery, “for that said accused, in the County of Fulton and State of Georgia, on the 15th day of September, 1929, . . being then and there an assistant license-inspector of the City of Atlanta, a municipal corporation, and it being provided by lawful ordinance of the City of Atlanta that it was his duty as such to examine into licenses granted by the city from time to time, and to perform all other duties relating to licenses required of him by the tax committee of General Council of the City of Atlanta under supervision of the Clerk of Council of said city; and it being part
The jury found the defendant guilty, and the court sentenced him to pay a fine of $250 and labor on the public works for eight months. Broadly stated, the questions for decision here are: (1) whether the trial judge erred in overruling the demurrers to the indictment, and (2) whether he erred in overruling the motion for a new trial.
On March 10, 1931, two separate demurrers were filed, and on the same day these demurrers were separately overruled. The first demurrer appearing in the record is as follows: "1. Defendant demurs generally to said indictment on the ground that no criminal act on the part of the defendant is set out in said indictment against defendant. 2. Defendant demurs to said indictment further on the ground that said indictment is not correct in form and is not drawn according to law.” We have set out the material parts of the indictment fully in order that it might speak for itself. We are satisfied that the indictment is good as against the first paragraph of the foregoing demurrer. Obviously the second paragraph presents nothing for the consideration of this court.
The second demurrer is as follows: “1. Defendant demurs to
As we understand it, the gist of the foregoing demurrer is that the alleged duties of the defendant were not his duties at all, but were the duties of a particular official, to wit, the marshal of the City of Atlanta. The demurrer alleges new matter, not disclosed by the indictment which it attacks, and which is not judicially known or legally presumed to be true. Therefore the demurrer is “speaking,” and presents nothing for the consideration of this court. Miller v. So. Ry. Co., 21 Ga. App. 367 (3-a) (94 S. E. 619). See also Jackson v. State, 64 Ga. 344, 347; Tate v. State, 24. Ga. App. 279 (2) (100 S. E. 765); Woodard v. State, 18 Ga. App. 59 (1-b) (88 S. E. 825).
We come next to the general grounds of the motion for a new trial. Certified copies of various sections of ordinances of the City of Atlanta were introduced in evidence. By section 1798 the office of license inspector was created. Section 1799 provides: “It shall be the duty of said inspector to examine into all licenses granted by the city, . . to perform all other duties required of him by the tax committee.” Section 1800 provides: “Said inspector shall be vested with power to prefer charges, and make arrest of all parties violating the law of the city, and shall take the oath required of special policemen, and have the right to wear the badge of same.” Section 1801-A reads: “The office of assistant
After swearing that he was engaged in the automobile-tire business as alleged, J. C. Shaw testified in part as follows: “Mr. Martin always delivered us our licenses — notice of licenses when they were due. The license was always handled through the mail. I always sent a check in through the mail. Mr. Martin was the man who came there to inspect — the only man that looked after licenses at all. . . I couldn’t say definitely how long before May 6, 1929, he had been coming there, but for some time, — I would say a year or two, or something like that. I let Mr. Martin have some 33 by 4-1/2 automobile tires, for which this is the bill— $118. . . He agreed to pay $20 as an initial payment within the next few days . . or at his next pay-day. . . I agreed to that. Then he was to pay every two weeks. $20 was the down payment. He hasn’t paid that yet. He was to pay $15 every pay-day. On these conditions I delivered him the tires . . May 6, 1929. . . The payments were due and were not paid. . . I first called him over the telephone at the city hall and discussed the matter with him. . . He told me over the telephone that he had had . . sickness in his family, and that was the reason he hadn’t taken care of the payments. . . I told him that my licenses were due and had to be paid, and he said . . he would take care of the licenses
J. J. Stoy testified in part: “I am an inspector of the license department of the city. There are five inspectors. They work under the city clerk. . . I was not an inspector while Mr. Martin was in the service. I came on July 15, 1930, and was told that I succeeded Mr. Martin. . . I checked up on the place of business of Shaw Tire Service. . . When I went to Mr. Shaw’s place I did not find a license on the wall. . . I found no difficulty in ascertaining that there was no license there. . . I think the last license was paid for the last quarter of the fiscal year 1929, — no, it was the third quarter; March 31st was the last license. That was in 1929. . . I gave him notice . . of intention to make a case against him in the police court unless he paid it. . . I understood it was my duty to make a case if he didn’t pay. To the best of my recollection, it was around a week after I gave the notice before it was adjusted. . . These places I refer to are in Fulton county, Ga.”
Deputy Clerk Oscar H. Williamson testified in part: “The license inspectors all work directly under the city clerk, each having certain territory to work on. I can’t say exactly what territory was assigned to Mr. Martin in July, 1929, and up to the time he left the service, but I think he worked most of the north side of
It appears from the first special ground of the motion for a new trial that J. C. Shaw swore, over objection, as follows: “I
Special grounds 2 and 3 complain of the overruling of certain objections to questions propounded to the Avitness J. C. ShaAv. “No error is shown by a mere refusal to exclude a question.” York v. State, 42 Ga. App. 453 (9) (156 S. E. 733). Furthermore, what answer was made to either question does not appear from the ground. Neither of these grounds presents any question for the determination of this court.
It is very difficult to pass intelligently upon the fourth special ground without reference to the brief of evidence, for the reason that this ground contains several questions and answers interspersed with colloquies between the court and counsel. Hoavever, we gather from the ground that the Avitness J. C. Shaw was alloAved to testify that Mr. Story called up the city hall by telephone from Sbuw’s place of business, and that “they” informed Shaw that he “Avas marked off of the books at the city hall as cquit business.’” The objection was that the testimony Avas hearsay. After the introduction of the foregoing testimony, the Avitness Oscar H. Williamson Jr., a deputy clerk of the City of Atlanta, testified, without objection, that ShaAv’s business Avas marked off the records at the city hall as “quit business,” and that he was the person making that entry. In view of this fact, the admission of the testimony objected to would not in any event be cause for reversing the judgment. See Patterson v. State, 17 Ga. App. 341 (2) (86 S. E. 782); Chapman v. State, supra; Terry v. State, 15 Ga. App. 108 (3) (82 S. E. 635).
The fifth and last special ground is based upon alleged newly discovered evidence. The nature of the evidence appears from the
The entire design of the alleged "newly discovered evidence appears to be to discredit the witness Shaw, and evidence which is purely impeaching in its nature is generally not ground for a new trial. It will be observed in this connection that Shaw did not testifty in so many words that he bribed the defendant, but merely swore to a state of facts that strongly led to that conclusion. We do not think that it can be fairly concluded that the alleged newly discovered evidence would probably produce a different verdict upon another trial of the case, and we hold that there was no reversible error in overruling this ground. See Oglesbee v. State, 25 Ga. App. 750 (a) (105 S. E. 51); Butler v. State, 42 Ga. App. 471, 472 (156 S. E. 644).
In conclusion we hold that the demurrers to the indictment were properly overruled, and that the court did not err in overruling the motion for a new trial for any reason assigned.
Judgment affirmed.