Adams v. State
| Decision Date | 09 June 1925 |
| Docket Number | 16385. |
| Citation | 128 S.E. 924,34 Ga.App. 144 |
| Parties | ADAMS v. STATE. |
| Court | Georgia Court of Appeals |
Rehearing Denied July 14, 1925.
Syllabus by Editorial Staff.
Where state witness used private memorandum book to refresh memory it was not error, in view of Park's Pen. Code, § 1046, to refuse to allow defendant's counsel to see it or cross-examine witness about the paper.
Motion for new trial, which does not state name of witness whose testimony was admitted or excluded is incomplete.
Grounds of motion for new trial should be complete within themselves and reference to other grounds should not be required in order to understand assignments of error.
Where in charging Pen. Code 1910, § 1010, court inadvertently used word "should," where statute provides that proved facts "must" not only be consistent with hypothesis of guilt, but must exclude every other reasonable hypothesis, it was not misleading error.
Questions of fact being for jury, where there was evidence that supported verdict which has approval of trial judge, the Court of Appeals cannot interfere.
Error from Superior Court, Fulton County; John D. Humphries, Judge.
Bill Adams was convicted of an offense, and he brings error. Affirmed.
T. J. Lewis, of Atlanta, for plaintiff in error.
John A. Boykin, Sol. Gen., E. A. Stephens, and Ralph H. Pharr, all of Atlanta, for the State.
Syllabus-OPINION.
1. While the right to a thorough and sifting cross-examination should not be abridged, yet, where a person is on trial and a witness for the state uses a private memorandum book to refresh his memory, no error harmful to the accused is pointed out in the ground of the motion for a new trial, which alleges that the court "refused to allow counsel for defendant to see it [the book] or cross-examine the witness about the paper." See, in this connection, Park's Penal Code, § 1046; Schall v. Eisner, 58 Ga. 191 (2); Smith v. State, 17 Ga.App. 298 (1), 86 S.E. 660.
2. Palmer v. State, 28 Ga.App. 567 (1), 112 S.E. 154. Moore v. State, 27 Ga.App. 781, 110 S.E. 55. Under the rulings in the foregoing cases, even if special ground 3 of the motion could be considered by this court, special ground 2 could not. However, neither of these grounds show error. See, in this connection, Hart v. State, 14 Ga.App. 364 (7), 80 S.E. 909; Tillman v. Bomar, 134 Ga. 660 (2), 68 S.E. 504.
3. Section 1010 of the Penal Code of 1910 is as follows: "To warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused."
In charging this section, the trial judge inadvertently used the word "should" where the statute has "must," in the last clause of the section. This slip of the tongue was not such an error as likely misled the jury and caused them to return a verdict different from what they would have done had the judge used the exact word of the statute, and the error is not of such materiality as to require the grant of a new trial. See Griffin v. State, 24 Ga.App. 656 (1), 101 S.E. 767; Reynolds v. State, 23 Ga.App. 369, 98 S.E. 246; Owens v. State, 139 Ga. 92(1), 76 S.E. 860.
4. When considered in connection with the remainder of the charge, the instructions of which complaint is made in ground 5 of the amendment to the motion for a new trial do not require a reversal of the judgment.
5. Questions of fact are peculiarly...
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