Austin v. State, 37766

• Citation: 100 Ga.App. 142,110 S.E.2d 422
• Decision Date: 09 September 1959
• Docket Number: No. 2,No. 37766,37766,2
• Parties: Terry AUSTIN v. STATE
• Court: Georgia Court of Appeals

Page 422

110 S.E.2d 422

100 Ga.App. 142

Terry AUSTIN v. STATE.

No. 37766.

Court of Appeals of Georgia, Division No. 2.

Sept. 9, 1959.

Syllabus by the Court

1. An objection to evidence on the ground 'that it has no value at all,' is entirely too vague and general to present any question for decision by the trial court or to form any basis for review by an appellate court of the ruling of the trial court admitting the same.

2. 'When a portion of a charge, which is complained of generally, contains several distinct propositions and one or more of the same is correct in the abstract, then the general assignment of error is not good and will not be further considered, because it in effect improperly alleges that all of such portion is erroneous, and does not show to which of the propositions, the correct of the erroneous, it is intended to take exception.'

3. The evidence authorized the verdict of guilty. The venue was sufficiently proved and the trial court did not err in denying the motion for new trial.

Terry Austin was indicted by the grand jury and tried in the Superior Court of Cobb County for rape, alleged to have been committed on the prosecutrix on August 15, 1958. The jury returned a verdict of not guilty of rape and guilty of assault and battery. The defendant made a motion for new trial on the usual general grounds which he amended by the addition of four special grounds. The trial court denied that motion, and the exception here is to that judgment.

Howell C. Ravan, Marietta, for plaintiff in error.

Luther C. Hames, Jr., Sol. Gen., Marietta, for defendant in error.

CARLISLE, Judge.

1. The first special ground complains of the admission in evidence of the warrant issued by the justice of the peace over the objection as shown by this ground 'that it has no value at all.' It is contended that the admission of the warrant over this objection was material, prejudicial and hurtful to the movant because it disclosed the particulars of the complaint and was inadmissible hearsay evidence without any value to prove venue, and that to permit the warrant to go out with the jury gave it an unfair advantage over the oral testimony by allowing it to speak to the jury more than once, and that its admission was further hurtful to the defendant for the reason that the court should have instructed the jury limiting the purpose for which the warrant was introduced. An objection to evidence not made and passed on in the lower court at the time the evidence is offered cannot be raised for the first time in the motion for new trial or in the appellate court. Lankford v. Holton, 187 Ga. 94, 100, 200 S.E. 243; Mack v. State, 71 Ga.App. 303, 30 S.E.2d 795. Accordingly, since it does not appear from this ground of the motion that any of the latter objections were urged before the trial court at the time the evidence was offered, they cannot now be considered. A mere general objection that proffered evidence is incompetent (Bowen v. Smith-Hall Grocery Co., 146 Ga. 157(1), 91 S.E. 32), or that it is irrelevant (Holliman v. State, 42 Ga.App. 322(2), 155 S.E. 906), or that such evidence was without probative value is too general to present any question for consideration by the trial court or by the appellate court in reviewing the overruling of the motion for new trial. Battle v. State, 73 Ga.App. 476, 481, 36 S.E.2d 873. Under these rules of law the objection to the introduction of the warrant which was interposed in this case was entirely too vague and general to present any question for the trial court's ruling and to form any basis for review of the ruling admitting the warrant in evidence. Accordingly, this ground fails to show harmful or reversible error.

2. Special ground 4 complains of three widely separated portions of the charge to the jury, as follows:

'And you must further find that the offense occurred in this county. Proof of venue is essential to conviction in criminal cases, and must be established beyond a reasonable doubt. Hearsay evidence is admissible to show county boundaries. Evidence of that may be either direct or circumstantial.'

'And in that charge of course it would include the question of venue; that would be a question of fact that you would determine in the way that I have instructed you.'

'I charge you that proof of venue is essential to conviction in a criminal case, and it must be established beyond a reasonable doubt. And hearsay evidence to show the county boundary is admissible, as the reputation in the community of the location or site of the county boundary is admissible in evidence. Evidence of the county boundary and the question of venue may be by direct evidence or circumstantial evidence. And on the question of where the greater weight of the evidence lies the jury is the sole judge of where the greater weight of evidence lies. And in that regard you can take into consideration the credibility of the witnesses, their interest or want of interest in the case, their familiarity with the evidence and the...