6 S.E.2d 438 | Ga. Ct. App. | 1939
Lead Opinion
1. "The right of one accused of crime to a thorough and sifting cross-examination of a witness appearing against him is not violated by ruling out a question hypothetical in nature, assuming facts not in evidence, and amounting to aimless, useless, and purposeless examination which would be waste of the court's time." Clackum v. State,
2. Where the indictment for robbery alleges the money taken to be the property of Glenn, and he is the president of a bank and in actual lawful possession of the money, the ownership may be laid in either the person having such actual lawful possession or in the bank which has the lawful legal title and the constructive possession, and the questions as to whether the bank had a bond indemnifying itself against loss in case of robbery, and whether the bank had made any demand upon the bonding company for reimbursement, were irrelevant under the facts in the instant case.
3. Where leading counsel was conducting the cross-examination of a witness, the trial court did not abuse its discretion in refusing to allow the defendant (an attorney at law himself) also to conduct the cross-examination.
4. The court did not err in excluding evidence offered for the purpose of showing that the accused did not flee after the robbery, although he had *325
full opportunity of flight. Flannigan v. State,
5. In a case where documentary evidence is submitted, an instruction, "Now, gentlemen, you have been impaneled as fair and impartial jurors, free from any prejudices or bias, and you have been sworn to try this case on the evidence in the case. You are to take the evidence as it comes to you from the witness-stand, including the statement of the accused, and take the law as it comes to you from the court; and on these you are to make up your verdict," is technically inaccurate and inapt. But, from the general structure of the charge and the scope of the evidence, it is apparent that the jury could not have been misled by the inaccurate expression, as excluding the documentary evidence from their consideration. Especially is this true where it appears that elsewhere in his charge the court instructed the jury: "A reasonable doubt, gentlemen, is a doubt for which you can assign a reason, not an arbitrary or capricious doubt. It is a doubt that would grow out of the case itself from a lack of evidence or from insufficient evidence, or from conflict in the evidence or from the defendant's statement; and it is such doubt as, after you have conscientiously given consideration to the entire case in an effort to arrive at the truth, would leave your minds uncertain and wavering as to what the truth is. That would be reasonable doubt. You are made by law the exclusive judges of the evidence. You are the exclusive judges of the credibility of the witnesses." (Italics ours.)
6. The requested charge was a hypothetical statement by way of instruction, and was insufficient, because it embraced but a part of the issues and ignored all facts necessary to be found as bases for the verdict. Southern Railway Co. v. Wilcox,
7. The evidence, taken as a whole, did not warrant a charge on delusional insanity.
8. The court reduced its charge to writing, read it, and filed the same with the clerk in response to the timely written request of the defendant so to do. Thereafter, the jury returned and asked the court for additional instruction which the court gave, in part from the original written charge, which the court immediately refiled, and in part from outside the original written charge, which part outside of the original written charge the judge had properly reduced to writing before giving it to the jury and immediately thereafter filed it with the clerk. Held: The court did not commit reversible error in that it did not comply with the provisions of the Code, §§ 81-1102, 81-1103, which are as follows: "The judges of the superior, city, and county courts shall, when the counsel for either party requests it before argument beings, write out their charges and read them to the jury, and it shall be error to give any other or additional charge than that so written and read. . . The charge so written out and read shall be filed with the clerk of the court in which it was given, and shall be accessible to all persons interested in it; and the clerk shall give certified copies thereof to any person applying therefor, upon payment of the usual fee."
1. Special ground 1 assigns error on the ruling of the court sustaining an objection to the question of counsel for defendant on cross-examination of Mr. Glenn in which Mr. Glenn was asked, "If Moyers [defendant] had demanded a half-million dollars, would you have gone down and fixed that up and brought it to him?" The contention is that the ruling of the court abridged the defendant's right to a thorough and sifting cross-examination; that "the question was material as affecting the credibility of the witness Glenn, and for the purpose of allowing the jury to determine whether the transaction was as contended for by the defendant, that is, that the witness Woodruff owed the defendant $30,000, and that the defendant [witness?] Glenn procured said sum only because he was instructed to do so by the witness Woodruff, and that had a larger amount been demanded by the defendant that the witness Glenn would have delivered said sum." This court, in Clackum v. State, supra, said: "While it is recognized that it is the substantial right of one accused of crime to a thorough and sifting cross-examination of every witness that appears against him, and that this right should not be abridged, yet this right is not violated by the judge in ruling out a question on cross-examination, hypothetical in nature, assuming facts not in evidence, which would amount to aimless, useless, and purposeless examination, and would prove a waste of time of the court." See also Durham v. State,
2. Special ground 2 complains that the defendant's right to a thorough searching and sifting cross-examination of the State's witness Black was abridged by the court in failing and refusing *327 to permit counsel for the defendant to interrogate said witness as follows: "Do you know whether any demand was made on any insurance company for any alleged losses the bank is alleged to have sustained by reason of a robbery?" Further, that it was "highly relevant and necessary from the defendant's standpoint to prove his innocence, it being contended by the defendant that the money was obtained by him in full settlement of the claim he had against the witness, Woodruff, and the failure of the Trust Company of Georgia or of Glenn [its president] to have made demand on the insurance company for reimbursement is a circumstance which the jury might conclude corroborated the statement of the defendant."
Where an officer or agent of a bank is robbed of money in his actual lawful possession, as distinguished from mere custody, although the legal title is in the bank, the ownership may be laid in either the person having such actual lawful possession or in the bank, even though the bank had the legal title and the constructive possession. Henley v. State,
3. After Mr. Finch, attorney for the defendant, had insisted upon asking the State's witness Black, "Do you know whether any demand was made on any insurance company for any alleged losses the bank is alleged to have sustained by reason of a robbery?" which we decided in the preceding division of this opinion was irrelevant, the following colloquy took place: Mr. Finch: "No. I say it is a circumstance the jury should consider." The court: "I don't think so. I think it is irrelevant." Mr. W. T. Moyers [defendant]: "Your Honor, the bank would not." . . The court: "I can not hear from you, Mr. Moyers." The defendant complains in special ground 3 that this deprived him of his constitutional right to defend himself, in that, after the court had sustained an objection to the question asked the witness Black on cross-examination as to whether or not any demand was made on the insurance company, it declined to hear from him (the defendant) on the objection. Code, § 2-104, declares: "No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State, in person, by attorney, or both." See also Gatlin v. State,
4. Special ground 4 complains of the ruling of the court excluding certain testimony of Mr. Thomas Howell Scott to the effect that after the alleged robbery of Mr. Glenn by the defendant Moyers, Moyers paid Scott $15. The defendant contends that it was relevant because "If, they claim, he had robbed anybody of thirty thousand dollars, he would have absconded." This evidence was to the effect that the defendant did not flee or conceal himself after the commission of the crime, and was thus consistent with his innocence. The evidence was not admissible. In Flannigan v. State,
5. In special ground 5 movant avers, alleges, and complains that the judge erred in instructing the jury as follows: "Now, gentlemen, you have been impaneled as fair and impartial jurors, free from any prejudices or bias, and you have been sworn to try this case on the evidence in the case. You are to take the evidence as it comes to you from the witness-stand, including the statement of the accused, and take the law as it comes to you from the court, and on these you are to make up your verdict." Movant contends that this charge excluded from the consideration of the jury certain documentary evidence introduced by and relied upon by the State and by the defendant. A similar error was charged in Hamilton v. State,
The defendant contends that the above-quoted portion of the charge was error for the further reason that it excluded the testimony given on the previous trial by Charles A. Bickerstaff who is now dead, and "said evidence was read by E. A. Stephens, assistant solicitor-general, a part of which testimony was relied upon by movant to justify a requested charge on delusional insanity." With reference to this contention, we are of the opinion that this excerpt of the charge was technically inaccurate and inapt, but relative to the evidence of Bickerstaff, a witness who had testified from the stand on the former trial and who had died before the time of the present trial (and of course could not go upon the stand on this trial), his testimony was read to the jury by the assistant solicitor-general as evidence which had been delivered from the stand on the former trial. The testimony of Bickerstaff did not raise the question of delusional insanity, nor did the whole testimony in the case, including this testimony of Bickerstaff, present such evidence as to require or authorize the judge to charge on delusional insanity. The testimony of Bickerstaff was in favor of the State, and even if it had been entirely eliminated the result would have been harmful to the State and not to the defendant. The circumstances under which this testimony was read to the jury, the scope of the evidence in the entire case, and the general structure of the charge as a whole, lead us to the conclusion that it is apparent *331
that the charge did not withdraw from the jury any issue comprehended in the pleading and the evidence, and no error relative to the testimony of Bickerstaff or the documentary evidence harmful to the defendant is disclosed by the record. Especially is this true since elsewhere in his charge the judge stated: "A reasonable doubt, gentlemen, is a doubt for which you can assign a reason, not an arbitrary or capricious doubt. It is a doubt that would grow out of the case itself from a lack ofevidence, or from insufficient evidence, or from conflict in the evidence or from the defendant's statement, and it is such doubt as, after you have conscientiously given consideration tothe entire case in an effort to arrive at the truth, would leave your minds uncertain and wavering as to what the truth is. That would be a reasonable doubt. You are made by law, gentlemen, the exclusive judges of the evidence. You are the exclusive judges of the credibility of the witnesses." (Italics ours.) See in this connection Fowler v. State,
6. Special ground 6 complains of the court's failure to charge upon request as follows: "I charge you that if you believe that the defendant made any threat to sue the witness Woodruff and to attach his property, and if you find that acting under that threat the witness Woodruff assented to the witness Glenn going out of the presence of the defendant for the purpose of securing $30,000 and delivering it to the defendant, I charge you that the defendant would not be guilty of robbery." The defendant contends that the request was warranted by the defendant's statement, and a failure to so charge was error because the same constituted part of the defense made by the defendant. We recognize the rule that if a theory of law is raised only by the defendant's statement, and there is an appropriate, timely, written request to charge such theory, it is reversible error to fail to charge that theory. Wrye v. State,
7. Special ground 7 complains that the judge erred in failing to charge, upon request, on delusional insanity; that is, to charge the jury in effect that if they believed the defendant was obsessed with the hallucination or delusion that the witness Woodruff was indebted to him in the sum of $30,000, and this delusion so acted upon the defendant that he was unable to distinguish between right and wrong, and while under such delusion he compelled the witness *333
Glenn, at the point of a gun, to deliver to him said sum, the defendant would not be legally responsible and the jury would be authorized to acquit him. The judge did not commit reversible error in failing to so charge. After a careful consideration of the evidence we are of the opinion that it did not warrant a charge on delusional insanity. But, conceding that the evidence warranted a finding that the defendant did act under such delusion, we are of the opinion that what the defendant insanely believed, were it true, would not justify robbery by intimidation. McKinnon v. State,
8. In special ground 8 the defendant contends that he presented a timely, written request that the judge reduce his charge to writing, and that while this request was complied with as to the original charge, yet, when the jury, after deliberating for a time, *334 returned and asked for a recharge, the judge did not reduce the whole of this recharge to writing, read it to the jury, and file it with the clerk, as required by Code, §§ 81-1102, 81-1103; but, instead, wrote and filed only the additional charge, and waited until several months thereafter to reduce to writing and file that part of the recharge which the judge reread from his original charge. With respect to this special ground the judge certified: "Movant, as alleged in said ground, requested that the court deliver a written charge to the jury, said request being delivered to the court before the argument of counsel had begun. The court prepared a written charge, which is correctly set out and quoted in this ground of the amendment. This written charge was read verbatim to the jury, and was immediately filed with the clerk. The jury, after having retired and considered the case for a time, requested to be recharged on certain features. The court thereupon reread to the jury verbatim from the written charge which had been delivered and which had been filed with the clerk, and wrote out and read to the jury verbatim the additional matter set out and quoted on page 24 of this amendment, which bears the signature of the judge and the entry of filing on the 28th day of October, 1938, and signed by C. E. Hartsfield, deputy clerk. This additional matter, which was so written out and read to the jury, was immediately filed with the clerk. The original charge from which the court reread a portion was at the same time refiled with the clerk. The court did not, either in the original charge or in the recharge to the jury, deliver any charge whatsoever except that which had been written out and which was filed with the clerk, as above stated."
It has been said by the Court of Appeals that "The principal object in requiring the charge to be reduced to writing, and read to the jury as written, and then filed with the clerk of the court, is to prevent disputes between the judge and counsel as to what was the charge." Dowling v. State,
The mere fact that several months after the trial and before the motion for new trial was heard, the judge, at the request of counsel for the defendant, certified as correct and filed with the clerk a transcript of his recharge (containing parts of his original charge which he had reread in his recharge), which transcript was unnecessarily taken down by the court's reporter, does not constitute reversible error in view of the fact that none of the transcript contradicts the certificate of the trial judge that "the court did not, either in the original charge or in the recharge to the jury, deliver any charge whatsoever except that which had been written out, and which had been filed with the clerk." As to the issue of writing out, reading, and filing the charge or recharge delivered to the jury, which is raised in this ground of the motion, the transcript of the stenographic notes was not material. It may be that the judge wished to allow counsel for the defendant and the courts the opportunity to compare the stenographic transcript, purporting to show what the judge reread in his recharge from the original charge, with the original charge itself, and when we make such a comparison, the two correspond with each other verbatim. The question is whether or not the judge (not the reporter) reduced the charge and recharge to writing before reading it to the jury *336 and then filing it with the clerk. The facts that the reporter took stenographic notes thereof and transcribed them, and that they were not filed until several months later are immaterial and do not affect the merits of this ground.
9. The general grounds are not argued or mentioned in the briefs of the plaintiff in error. However, the evidence authorized the verdict.
Judgment affirmed. Broyles, C. J., and Guerry, J.,concur.
Addendum
Relative to ground 3 of his motion for new trial, plaintiff in error contends, in his motion for rehearing, that the record shows "that the court refused to permit the defendant to argue to the court on a point of law, in violation of his constitutional rights." In considering ground 3 of the motion for new trial this court decided that the trial court did not abuse its discretion in refusing to allow the defendant himself, in addition to his leading counsel, to also conduct the cross-examination of the witness. The record discloses that the jury were sent from the court-room during the cross-examination of a State's witness by defendant's leading counsel so that the court might determine whether or not the following question would be admissible: "Do you know whether any demand was made on any insurance company for any alleged losses the bank is alleged to have sustained by reason of a robbery?" The court, after an objection was interposed by counsel for the State, said to counsel for the defendant: "I will hear from you." Then the following occurred: Mr. Finch: "Thank you, your Honor. Your Honor, I propose to show that in one indictment Mr. Moyers is charged with robbing Mr. Glenn and Mr. Woodruff of $30,000, the property of the Trust Company of Georgia. He [Glenn] has testified repeatedly in this case that he went down and got the money and it was money of the Trust Company of Georgia; that he didn't have it. I think it is highly material for the purpose of showing, for the purpose of attacking his credibility in saying it was the bank's money, when the bank was amply protected by an insurance policy, and if it was the bank's money and the bank had been robbed as he testified they have, he had the simple expedient of calling upon the bonding company to pay it off, and not pay it off himself. I say that is a circumstance and fact that the jury should be entitled to consider in passing *337 upon his credibility." The court: "Your argument is [that] the rational thing to do was to say nothing about the money, not mention the shortage, and call on the bonding company to pay it off?" Mr. Branch: "And not try to catch the robber." Mr. Finch: "I am not saying what the rational thing is." The court: "We don't want to do vain things. I think a court trial ought to proceed along common logical lines. Your point is the bank ought to be reimbursed?" Mr. Finch: "No. I say it is a circumstance the jury should consider." The court: "I don't think so. I think it is irrelevant." Mr. W. T. Moyers (the defendant): "Your Honor, the bank would not." The court: "I can not hear from you, Mr. Moyers." It seems to us that where leading counsel for the defendant asks a question on cross-examination of the State's witness and the State's counsel objects to the question as being irrelevant and the judge sends the jury from the court-room and gives the defendant's leading counsel, who is conducting the cross-examination, a reasonable opportunity to argue the question of the admissibility of the question and the answer thereto, and the defendant's leading counsel so does, the judge does not abuse his discretion in refusing to hear further argument from other of the defendant's counsel, or from the defendant himself, when the judge terminates the argument in order that he may pass upon the question thus propounded on cross-examination and proceed with the trial. This argument as to the admissibility of such question during the cross-examination was pertinent to, and in effect a part of, the cross-examination. We can not see that the judge abused his discretion, especially where the question was clearly irrelevant and inadmissible and has been so determined by this court. The question already argued by the defendant's leading counsel and apparently sought to be argued further by the defendant himself, clearly related to the right of the defendant to cross-examine the witness on a matter which was clearly irrelevant.
Rehearing denied. Broyles, C. J., and Guerry, J.,concur.
