11 Ga. App. 15 | Ga. Ct. App. | 1912
1. An abstract of the indictment is set forth above. It was framed under the act of 1907, found in § 245 of the Penal Code of 1910. It charged the offense substantially in the language of that section, and was not subject to general demurrer. It has been directly ruled by the Supreme Court several times that forgery and uttering the forged paper 'may be joined in one count in the
2. The answer to the garnishment as originally filed was in the case of W. O. Hitchcock v. T. F. V. Cole, alleged to have been pending in the justice’s court of the 1080th district. It was. sworn to on April 15, 1907, and admitted an indebtedness of about $75, being the balance which the garnishee claimed to be due on certaiñ notes which he had made to Cole, the defendant, for borrowed money. In the answer as altered the ease was stated to be that of A. L. Scroggins v. T. F. V. Cole, pending in the justice’s court of the 1080th district. The date was changed so as to make it appear that the answer had been sworn to on December 15, 1907. In the indictment it is alleged that judgment had been obtained by Scrog-gins in the justice’s court of the 951st district against the defendant, T. F. V. Cole, for the sum of $35, and that the summons of garnishment which had been sued out by the accused as the attorney for Scroggins was based upon this judgment. The point is made that under § 4754 of the Civil Code of 1910, when the garnishee resides in a different militia district from that in which the judgment was obtained, the affidavit and bond for garnishment should be made before an officer of the district in which the garnishee resides, that the summons of garnishment should be made returnable in the district of the garnishee’s residence, and that the garnishment proceedings in the Scroggins case were void, because, the summons was made returnable to the justice’s court of a. district other than that in which the garnishee resided. It is insisted that, the proceedings being void, a forged or counterfeit answer filed in the district to which the summons was returnable could not have defrauded the garnishee, and that for this reason the conviction was unauthorized. There is no merit in this point. If a summons of garnishment should be made, returnable to a district' other than that in which the garnishee resides, the garnishee could raise the point by appearing and pleading to the jurisdiction of the court, but if he waived jurisdiction by appearing and filing an answer, he would be bound by any judgment rendered in the garnishment case. For this reason the answer as altered and filed
3 The judge’s charge was not sent up with the record. By approving the grounds of the amended motion for a new trial unconditionally, he certified that he did not charge the jury in reference to the form of their verdict in the event they found the defendant not guilty. It appears, however, from an extract from the charge, set forth in another ground of the motion for a new trial, that the judge distinctly charged the jury that they must confine themselves to the allegations made in the indictment, and to the opinion which they might entertain of the evidence, and “make up a verdict of guilty or not guilty, as the evidence justified.” The jury returned a verdict of guilty, with recommendation that the accused be punished as for a misdemeanor. Where, in a criminal case, the judge distinctly charges the jury that if they believe the evidence offered in behalf of the accused, they should acquit him, the inadvertent omission to state what should be the form of their verdict in the event of acquittal will not be cause for a new trial. Thompson v. State, 120 Ga. 132 (5) (47 S. E. 566).
4. In several grounds of the motion for a new trial complaint is made of the admission of documentary evidence, but the evidence is not set out, either literally or so substantially that this court can determine the question sought to be raised, without reference to other parts of the record. For example, in the 5th ground of the motion the alleged error is thus stated: “Because the court erred in admitting before the jury the certified copy offered in evidence by the State, signed J. B. Lawrence, J. P. 1080 dist. G. M., dated Aug. 10, 1909.” In the 10th ground the complaint is made generally that the court erred in admitting in evidence " a “certified copy of the proceedings of the garnishment proceeding.” In the 11th ground the complaint is made generally that the court erred in overruling “the objection to the answer of G. F. Cole to the garnishment tendered in evidence by the State.” It has been many times ruled that assignments of error such as those above referred to present no questions with which the reviewing court can deal. . Shippen Lumber Co. v. Gates, 136 Ga. 37 (70 S. E. 672); Sasser v. Pierce, 9 Ga. App. 27 (70 S. E. 197); Jones v. Pope, 7 Ga. App. 538 (67 S. E. 280); Rossiter MacGovern
5. One of the documents material to the State’s case- could not be found. Upon the preliminary investigation before the court there was testimony from which the court could have found that the paper was in the custody of the accused. The accused objected to secondary evidence of the contents of this paper. Since the court could not compel the accused to produce evidence against himself, the paper was so inaccessible that secondary evidence of its contents was admissible. Farmer v. State, 100 Ga. 41 (28 S. E. 26), and cases cited; Moore v. State, 130 Ga. 322 (4) (60 S. E. 544).
6. The court permitted State’s counsel to propound leading questions to a witness who had been called by the State. Counsel stated that he had been misled by the witness, that statements had been made to him by the witness totally at variance with the testimony then being given, and, for this reason, he desired permission to lead the witness for the purpose of ascertaining the truth of the matter then under investigation. There was no abuse of discretion in permitting leading questions to be propounded to this witness. Matters of this nature are in the discretion of the trial judge, and it is only in extreme cases that the reviewing court will interfere. In 'the present instance the judge properly exercised his discretion. Barker v. State, 1 Ga. App. 286 (5 S. E. 989).
7. Where, in a criminal case, there is no evidence upon which a verdict of guilty could properly be based, it is not improper for the trial judge to so state to the jury, 'and advise them to return a verdict of not guilty. It is a needless consumption of time to permit extended arguments in.a criminal ease, and to give lengthy instructions upon various theories of the law, when there is a total lack of evidence to authorize a verdict of guilty. In such a case the trial judge not only has the right, but it is his duty, if he interprets the law in such a way as that when applied to the evidence a verdict of acquittal would necessarily result, to so instruct the jury and end the case. But while this is true, a refusal of the trial judge, at the close of the evidence for the State, to direct a verdict of “not guilty” is not a proper subject-matter of an assignment of error in the reviewing court. The only question in reference to the evidence which this court can consider is whether
8. We have carefully examined the evidence in this.case. It appears that the accused had a claim in favor of Scroggins against T. F. V. Cole, and that as attorney at law he caused summons of garnishment to be issued and served upon G. F. Cole; that the garnishee called the attorney over the telephone, and stated that he was unable to come to town and make answer to the garnish'ment, and inquired if he could not make the answer over the telephone. The attorney replied that he could; whereupon the garnishee instructed the attorney to make for him the same answer which he had previously filed in the case of Hitchcock v. T. F. V. Cole, with the exception that the notes which the garnishee had given to T. F. V. Cole had been transferred by Cole to some other person since the filing of the first answer. Counsel for the accused claims that in filing the second answer he acted under instructions from the garnishee, and that although the transaction was illegal, the evidence demanded a finding that he could have had no criminal intent in making the alteration in the answer to the garnishment. The difficulty about this contention is that the accused did not comply with the instruction given him by the garnishee. In effect, the instruction was to file an answer that the garnishee was not indebted at that time to the 'defendant; and the answer as filed by the accused showed an existing indebtedness of $75. There was sufficient evidence from which the jury could find that the accused made the alteration in the answer, as alleged in the indictment. He did not in his statement undertake to explain the transaction, but contented himself with a general statement to the effect that he was not guilty of the crime with which he was charged, and had never been guilty of any similar crime in his life. The circumstances were such as to call for a detailed explanation from him in reference to the transaction, and his failure to give it was proper matter for' consideration by the jury, upon the question of criminal intent. This question was one peculiarly for their determination, and this court has no power to set aside a verdict in any case where there is any evidence upon which it could be based, unless there has been some material error of law. No such error having been committed in the present case, it necessarily results that the judgment must be Affirmed.
