52 Ga. App. 98 | Ga. Ct. App. | 1935
The indictment charged that W. W. Wise, alias W. W. Wood, J. P. Spain and Guy Baines committed the crime of burglary by breaking and entering the warehouse of King, Dobbs & Company and stealing therefrom “one 1 1/2 ton Beo truck, 50
Both Spain and Baines testified that they and Wise participated in the burglary. It is true that the uncorroborated testimony of an accomplice will not alone sustain a conviction for a felony, Code of’ 1933, § 38-121, but it is equally true that "one may be legally convicted of a felony other than treason or perjury where the only evidence directly connecting him with the offense charged is the testimony of an accomplice, and where the only corroboration is the testimony of other accomplices.” Pope v. State, 171 Ga. 655 (156 S. E. 599); Wilson v. State, 51 Ga. App. 570 (181 S. E. 134). In the instant case the testimony 'of each accomplice corroborates that of the other, and such testimony so corroborated is sufficient to sustain the conviction of Wise. The court did not err in overruling the general grounds of the motion for new trial.
It is averred in special ground one that the court erred in overruling counsel’s motion to rule out the following testimony of< C. Y. Blessing: "On two or three of the cases our entire name had not been defaced;” the objection being, "The cases themselves would be the highest and best evidence.” The ground is not complete, since it does not disclose what sort of "cases” the witness was testifying about, or whether they were accessible or were of such character that they could be conveniently brought into court. We are of the opinion however that the testimony was admissible. “The law generally requires the production of the highest evidence of which a thing is capable; and evidence is to be excluded which supposes still higher evidence behind in the possession or power-of the party. . . The general rule is most frequently applied to writings, where proof is offered of their contents. The writing itself must be produced. But there are many exceptions as to writings. An inscription on a banner or flag carried about by the leaders of a riot may be proved orally. The King v. Hunt, 3 B. & Aid. 566. Or a direction contained on a parcel. Burrell v.
Special ground two is very similar. It is averred that the court erred in admitting the following testimony of C. Y. Blessing: “The full lettering on the cases of cigarettes that we received at our warehouse was King-Dobbs and Company, 320 Hunter Street, Southeast, Atlanta, Georgia. The letters that I referred to on the cases recovered were in relatively the position where the letters
It appears from special ground three that certain testimony of H. W. Armstrong was admitted over the objection that “it would throw no light on the guilt of this defendant,” and was irrelevant and immaterial. The ground is defective, for the reason that it does not show how the testimony was immaterial or how it was harmful to the defendant. Hunter v. State, 148 Ga. 566 (2) (97 S. E. 523); Martin v. State, 35 Ga. App. 575 (2 a) (134 S. E. 185); Wilson v. McConnell, 36 Ga. App. 767 (138 S. E. 244); Herndon v. State, 38 Ga. App. 117 (6) (142 S. E. 695).
Ground four in full is: “Because the court erred in permitting H. W. Armstrong, a witness for the State, to remain in court during the progress of the trial.” It not appearing from the ground that any objection was ever made to the witness’s remaining in court during the progress of the trial, or that he ever testified in the case, or that he did not remain in court for some legitimate purpose, such as to assist in the prosecution (Shaw v. State, 102 Ga. 660 (5), 29 S. E. 477; Benton v. State, 9 Ga. App. 291 (6), 71 S. E. 8), or that any injury resulted to movant because the witness remained in court, this ground is obviously not meritorious.
Special ground five is similar to the preceding. It avers that the court erred in allowing Armstrong to give stated testimony, for the reason that he had “been permitted to remain in court during the progress of the trial, and had heard the evidence adduced.” It does not appear from the ground that the evidence was objected to, or that any objection was made to the witness’s remaining in court, or that the court abused its discretion in permitting the witness to remain in court during the progress of the trial. The ground is not meritorious.
It is averred in special ground six that “movant moved to rule out the following testimony of Frank Bickerman: ‘I am more certain now than I was yesterday that Mr, Wood is the gentleman
The court did not commit reversible error in overruling the motion for new trial as amended for any reason assigned.
Judgment affirmed.