50 Ga. App. 51 | Ga. Ct. App. | 1934
An execution in favor of Mrs. Susan Minix (who is represented by J. D. Minix, as administrator of her estate) and against H. J. Nipper, was levied upon a 1931-model Chevrolet automobile truck found in possession of H. J. Nipper, the defendant in execution. H. J. Nipper, as guardian for his two daughters, filed a claim to the truck, and upon the trial of the claim case the jury found the property subject to the execution. The court overruled the claimant’s motion for a new trial, and on this judgment he assigns error.
On the trial of the case the plaintiff in execution attacked the credibility of the witness Nipper, and attempted to impeach him by proving that his testimony was contradictory to material statements previously made by him. Nipper testified that he individually had no interest in the truck; that the truck “is not fully paid for yet. What has been paid on it has been paid out of their [his daughters’] money;” that their grandfather gave them a farm, a mule, a wagon and cows, and that he “sold the mule about one
The property levied upon was found in the possession of the defendant in fi. fa., H. J. Nipper, and the burden was bn the claimants to show that the property was their own. Without Nipper’s testimony the evidence would not authorize a verdict in favor of the claimants, and the jury by their finding said that they did not accept his testimony. The credibility of Nipper as a witness was for the jury to determine. “It being the exclusive province of the jury to determine the credibility of all witnesses, when an effort is made by any of the methods pointed out by law to impeach a witness, the jury then become the triors of the credibility, respectively, of the witness sought to be impeached, and of the witness or witnesses by whose testimony the impeachment is attempted; and, accordingly, they have the right, under all the attendant circumstances and conditions, to determine whether credit shall be given
The 1st special ground of the motion for a new trial presents no question for the consideration of this court, since it complains of a lengthy excerpt from the charge without specifying wherein it is erroneous. Callaway v. Pearson, 21 Ga. App. 565 (94 S. E. 817). The 2d special ground is not complete and understandable without a reference to the preceding ground. Dixon v. State, 28 Ga. App. 756 (3) (113 S. E. 24). However, judging from the record and the brief of counsel for the plaintiff in error, the chief complaint of the charge is contained in the 3d special ground of the motion, which alleges that the following charge is error: “When a witness has been successfully impeached by any of the legal methods, that is, where his unworthiness, of credit is absolutely established in the minds of the jury, he ought not to be believed, and it is the duty of the jury to disregard his entire testimony unless it is corroborated; in which ease you may believe the witness; it being, as a matter of course, always for the jury to determine whether a witness has or has not been in fact so impeached.” This identical charge has been approved as correct by the Supreme Court in Landers v. State, 149 Ga. 482 (100 S. E. 569), and by this court in Bart v. Scheider, 39 Ga. App. 471 (147 S. E. 430). See also Parker v. State, 3 Ga. App. 341 (59 S. E. 823); Powell v. State, 122 Ga. 571 (50 S. E. 369). The issue authorized such a charge, and the judge clearly instructed the jury that they “are at last the sole and exclusive judges of what witness or witnesses they will believe or disbelieve, and of what testimony they will credit or discredit;” that the jury are “the triors of the credibility of the witness sought to be impeached and of the witness or witnesses by whose testimony the attack is made, or by other evidence such as
The evidence authorized the verdict, no error of law is shown, and the court properly overruled the motion for a new trial.
Judgment affirmed.