Howard v. State

• Citation: 4 S.E.2d 418,60 Ga.App. 229
• Decision Date: 26 May 1939
• Docket Number: 27513.
• Parties: HOWARD v. STATE.
• Court: United States Court of Appeals (Georgia)

4 S.E.2d 418

60 Ga.App. 229

HOWARD v. STATE.

No. 27513.

Court of Appeals of Georgia, Division No. 1.

May 26, 1939

Rehearing Denied June 28, 1939.

Syllabus by the Court. [Copyrighted Material Omitted]

John I. Kelley, John H. Hudson, C. E. Kay, Claude Brackett, and G H. Howard, Sr., all of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., J. Walter Le Craw, and E. E. Andrews, all of Atlanta, for the State.

GUERRY Judge.

Howard, a deputy sheriff of Fulton County, Georgia, was tried on an indictment containing nine counts, each count charging a separate act of bribery, in that as such officer he received bribes to prevent the proper performance of the duties of his office, each act being specifically alleged. The state abandoned the third count of the indictment, and the jury returned a verdict of not guilty as to counts one, two, and six, and a verdict of guilty as to counts four, five, seven, eight and nine. All of the acts charged were alleged to have occurred within two years before the return of the indictment, except as to the acts charged in the second count, it being alleged therein that the acts there charged were unknown until March 1, 1938.

Complaint is made in the 4th ground of the amended motion for new trial, that the judge erred in his charge therein set forth, it being contended that he failed to limit the acts necessary to prove guilt to a period within two years before the return of the indictment. It may be well to state that the court, after having given in charge the general law in respect to the defendant, took up each separate count of the indictment, and in all of them except the second count charged that the acts proven must have been within two years preceding the return of this indictment into court, before the defendant could be found guilty. On the second count the court charged: "I charge you that would be barred by the statute of limitation, and you could not consider it unless you believed in connection therewith from the evidence that the solicitor general, the prosecuting authority, did not have knowledge of it at the time of the commission of the crime or at a time within the two-years period; that is to say, he had no knowledge of it until at the time which would have barred the action by the statute, by reason of that much time having elapsed since the prosecuting officer learned of the existence of the charge." Inasmuch as this charge was limited to the second count, and in each of the other counts the jury was specifically limited to a consideration of acts within the statutory period, the error complained of, when considered in the light of the charge as a whole, is without merit.

In ground 5 error in the charge is alleged, in that the court, in charging on the weight and credit to be given the testimony of the witnesses, undertook to give in charge the substance of section 38-107 of the Code, but did not give it verbatim or in its entirety. It will be noted in this case that the State relied, for a conviction on most of the counts, upon the testimony of witnesses who were themselves admitted bribe givers and violators of the prohibition law, and to whom immunity had been promised. The court expressly charged the jury to take these facts into consideration in weighing the testimony of the witnesses and then stated that the law made the jury the exclusive judges of the credibility of the witnesses, and that in passing upon their credibility "you may consider their interest or lack of interest as a witness. You may consider his relationship to any of the parties involved in the case, or the absence of such relationship. You may consider his bias or prejudice, if such should exist in the case, the witness's intelligence or want of intelligence, his means and opportunity of knowing the facts about which he testified, the reasonableness or unreasonableness of the facts to which he testified and you may consider the personal credibility of the witness in so far as that legitimately appears from the trial before you." The plaintiff in error insists that this charge fails to cover every item and circumstance as detailed in section 38-107, and that under the decision in Shankle v. Crowder, 174 Ga. 399, 163 S.E. 180, reversible error was committed. In Eller v. State, 48 Ga.App. 163, 165, 172 S.E. 592, 593, this court said, in a similar complaint where the court attempted to charge this section but failed to charge it in its entirety: "While the 'preponderance of evidence rule' is always applicable in a civil case, it is inappropriate in a criminal case, where the state is required to prove the guilt of the accused beyond a reasonable doubt. *** it is ordinarily inapt to charge section 5732 [Code 1933, § 38-107] in a criminal case, but so doing is not reversible error if the instruction appears to be harmless." In Thompson v. State, 160 Ga. 520, 128 S.E. 756, it was held that where the charge of this section was substantially correct, there was no error. In the Shankle case, supra, a civil case, the part omitted was "the personal credibility of the witness." The charge in this case, above quoted, shows that this section was charged in its entirety except as "to the manner of testifying." This omission was harmless. The court charged the "reasonableness or unreasonableness," rather than the probability or improbability, of the testimony. The meaning of the terms "reasonable" and "probable," as here used, is so nearly the same that even in a civil case such charge would not be held to be improper. There is no merit in the complaint. The same may be said in reference to ground 6, which complains that the court in effect instructed the jury to apply the law to the facts obtained from the evidence and "apply the one to the other, and in that manner reach the truth of the case." The court had elsewhere fully instructed the jury as to the defendant's statement which they might accept in preference to all the sworn evidence, and it was not error to fail to charge in connection with the principle then being given. See Tucker v. State, 133 Ga. 470(5), 66 S.E. 250.

Ground 7 of the motion is in respect to the evidence in support of the 8th count, it being contended that the testimony of the State's witness in support of this count was too indefinite to fix the time of the commission of the act alleged within two years before the return of the indictment. The testimony of this witness, when read in its entirety, was sufficient to support a finding that some of the acts testified to had occurred within a period of two years before the return of the indictment. Even though it be granted that the testimony of this witness on the direct examination was inconsistent with his testimony on the cross-examination, he continued to swear positively that the last bribe given was "in the fall of 1936." He was not such a party to the case as to hold that his testimony was not without probative value. See Sherman v. Stephens, 30 Ga.App. 509, 510(4), 118 S.E. 567; Reaves v. Columbus Electric & Power Co., 32 Ga.App. 140, 122 S.E. 824.

Grounds 8, 9, 10, 11, 12, 14, 16, 17, 20, 21, and 22 of the motion for a new trial, being exception to rulings on evidence, requests to charge, motions to declare mistrial, and the like, are without merit, and require no discussion.

Ground 13 of the motion is in respect to a request to charge on the subject of immunity, and the effect of the repeal of the prohibition law. The language used in the request was not a correct statement of the law, nor are we able to see, in the light of the charge as a whole, that it was harmful error to refuse such request.

We do not think that the exception taken in ground 15 is well taken. The fact that the Solicitor-General on objection being made to a question propounded by him, stated what he expected to prove by the witness is no ground for declaring a mistrial, although the court sustains the objection made, where it does not also appear that such statement made in the presence of the jury was prejudicial, which fact does not appear under the present state of facts. To hold otherwise would be to subject the case to have a mistrial declared whenever evidence was unsuccessfully sought to be introduced. Moreover, we think the reason stated by the Solictor-General as to what he expected to prove in the present case was entirely proper, and such testimony was not subject to the objection offered. The Solicitor-General had asked the witness for the defendant what was the value of the house the defendant lived in. Upon objection on the ground of irrelevancy and immateriality, the Solicitor-General said, "I am showing how he made $155 a month and was buying automobiles and living in a fine house on the $155 a month, and paying alimony to one wife and keeping up another." The extravagance of the defendant, the money he spent compared with the money he earned or the income he had, are circumstances which may illustrate motive in accepting a bribe. See Camp v. State, 31 Ga.App. 737(7), 122 S.E. 249, and cit. Williams v. State, 177 Ga. 391(2), 170 S.E. 281.

The alleged newly discovered evidence was merely cumulative and impeaching in its character, and was not such as would be likely to cause a different result at another trial.

The request to charge as set out in ground 19 of the motion was fully covered in the charge, as given, and it was not error to refuse the same. The charge of the court limiting the evidence as to other crimes to the specific purpose for which it was admissible was an unusually clear statement of the law in respect to this principle and in no other part of the charge was this principle limited or detracted from.

In ground 23 defendant excepted to the overruling of its motion for continuance. The indictment was...