Bell v. State
| Decision Date | 03 October 1973 |
| Docket Number | No. 48274,No. 2,48274,2 |
| Citation | 201 S.E.2d 340,129 Ga.App. 783 |
| Parties | Milton BELL v. The STATE |
| Court | Georgia Court of Appeals |
Walton Hardin, Washington, for appellant.
Kenneth E. Goolsby, Dist. Atty., Thomson, for appellee.
Syllabus Opinion by the Court
Following his February 10, 1972 conviction for the misdemeanor of possession of nontax-paid liquor, Milton Bell appeals. raising 8 points.
1. Bell contends the lower court erred in overruling his motion for new trial made upon the ground that the evidence was insufficient to support the verdict.
The evidence at trial showed that revenue agents knew of and were watching a still. They saw a light blue Ford pickup truck drive toward the still down a country road, and as they continued to watch they saw the truck come back from the still area with Milton Bell driving and two other black men inside. The revenue agents attempted to stop the truck and make an arrest but were forced to jump aside out of the road when Bell, seeing them, instead of stopping sped forward so that the risk existed that they would be run down. The truck was stopped only by a roadblock some distance away to which these initial revenue agents were able to run, following the direction of the truck, in less than five minutes. The agent already stationed at the roadblock saw the truck stop and saw three black men run from the truck and make their escape into the surrounding woods. The truck at that time was discovered to have 83 gallons of nontax-paid whiskey aboard. When the still was examined shortly after these events, it was found to be still hot from running.
Bell urges that the evidence will not support his conviction because he was identified as the driver of the truck only at a time at which there was no evidence that the liquor was aboard; and at the time the liquor was discovered on the truck stopped at the roadblock, he was nowhere in the vicinity.
Circumstantial evidence is adequate to convict when every reasonable hypothesis is excluded save that of guilt of the accused. Code § 38-109. The evidence detailed above involving less than five minutes between the time Bell and two other men were seen in the truck and the time the truck was abandoned and found to contain 83 gallons of whiskey, provides ample circumstantial evidence from which to conclude that the only reasonable explanation for this series of events was that at the time the agents attempted to stop Bell the whiskey was aboard and that is why the attempted flight was made. See Craft v. State, 124 Ga.App. 57, 183 S.E.2d 37; Brown v. State, 98 Ga.App. 350, 105 S.E.2d 785.
2. Bell's second enumeration of error concerns the overruling of his new trial motion made on the double ground that the list of the state's witnesses to which he was entitled under Code Ann. § 27-1403 was only given to him upon the call of the case in open court, and he was without sufficient time to prepare; and the state actually called only four of the 13 listed witnesses.
In answering the first point, we note that nowhere in the record is there any indication that a list of witnesses was demanded earlier than February 10, 1972, the date of trial, which was the date of filing of the demand itself. To invoke § 27-1403 it is not only imperative that a demand be made, but that it be made 'previously to his arraignment.' Code Ann. § 27-1403. There is nothing in the record showing any such demand previous to arraignment, and this demand, coming just before the call of the case, came too late under the terms of the statute. Jones v. State, 224 Ga. 283, 161 S.E.2d 302, rev'd in part on other grounds, 224 Ga. 782, 164 S.E.2d 831. See Beeks v. State, 225 Ga. 200, 167 S.E.2d 156. However, in any event he was given the list of witnesses when he requested it, and he will not be heard to claim that he was prejudiced by not being given it prior to his demand.
As a second point of error concerning the list, Bell complains of the state's having called fewer than all of those named. There is no requirement that the state call more witnesses than it needs to present its case. In analogous circumstances the state is not required to call all of those witnesses named in the accusation itself. Greeson v. State, 97 Ga.App. 245, 102 S.E.2d 503; Harper v. State, 131 Ga. 771, 63 S.E. 339; Cole v. State, 86 Ga.App. 770, 72 S.E.2d 537. Because the list was neither demanded nor received until immediately prior to the call of the case for trial, which lasted only one day, neither can Bell convincingly assert that the state squandered his time for preparation by mischievously giving him a long list of spurious witnesses to investigate. There was no error in the state's calling only some of its listed witnesses.
3. In his third enumeration Bell contends that his motion for mistrial should have been granted when the district attorney, without first eliciting from the revenue agent then on the stand any testimony showing the agent's intent to arrest Bell when he was seen behind the wheel of the truck, asked 'Tell us what he did when you stepped out in front of the truck to arrest him?' Bell's argument is that the district attorney was testifying and was trying to plant in the minds of the jury the idea the Bell had been resisting arrest. Upon objection, the court struck the question.
It is sufficient to answer this point merely to note that two questions later, without objection from Bell's attorney, the district attorney asked the witness '. . . what were you trying to do when you got out in front of that truck?' The answer was 'To arrest whoever was in there.' There was no error in overruling the mistrial motion. Denham v. Shellman Grain Elevator, Inc., 123 Ga.App. 569(2), 181 S.E.2d 894.
4. In questioning a revenue agent about his ability to identify Bell, after asking how many times he had seen Bell, and receiving the answer '. . . 50 or 100, . . .' the district attorney began a question. 'Have you made it your business to know . . .?' and was stopped by objection. The court struck the uncompleted question. Bell urges that this uncompleted question placed his character in issue by innuendo.
Absent special circumstances, even when an improper question has been completed and propounded to the witness, when objection is made...
To continue reading
Request your trial
-
Albert v. State
...v. State, 172 Ga.App. 738(5), 324 S.E.2d 575 (1984); Chester v. State, 162 Ga.App. 10(7), 290 S.E.2d 117 (1982); Bell v. State, 129 Ga.App. 783(6), 201 S.E.2d 340 (1973). Second, the statements of counsel objected to here were never allowed in evidence, nor did the court rule that they woul......
-
Godbey v. State, A99A0868.
...of the court's discretion to deny a motion for mistrial founded upon the mere asking of the question. [Cit.] Bell v. State, 129 Ga.App. 783, 785(4), 201 S.E.2d 340 (1973) (physical precedent only, but cited with approval in State v. Shuman, 161 Ga.App. 304, 306(3), 287 S.E.2d 757 (1982)). H......
-
Chester v. State
...was made to the document here so as to require us to follow Farmer v. State, 100 Ga. 41, 28 S.E. 26, supra. In Bell v. State, 129 Ga.App. 783, 787, 201 S.E.2d 340, we note this court stated that the "[defendant's] apparent contention on appeal that admissions of a party in a civil matter ar......
-
Compher v. Georgia Waste Systems, Inc.
...have occurred here and that a mistrial was not essential to preserve the right of the plaintiff to a fair trial. Bell v. State, 129 Ga.App. 783(6), 201 S.E.2d 340 (1973); Woods v. State, 233 Ga. 495, 498, 212 S.E.2d 322 Also, we are not convinced that the question posed by defense counsel w......