Bennett v. State

• Decision Date: 23 July 1934
• Docket Number: 23758.
• Parties: BENNETT v. STATE.
• Court: Georgia Court of Appeals

176 S.E. 148

49 Ga.App. 804

BENNETT v. STATE.

No. 23758.

Court of Appeals of Georgia

July 23, 1934

Rehearing Denied Sept. 29, 1934.

Syllabus by Editorial Staff.

Special ground for new trial must be complete and understandable within itself and require no reference to some other portion of record.

Special ground complaining of admission of testimony of prosecution witness that he hired persons familiar with cows, who took mules and drove everything they said they found in that country, held too incomplete for consideration because failing to show materiality or harmful character of testimony, where ground did not disclose offense for which accused was on trial.

Where testimony that witness "hired (named persons), they were familiar with cows, the cattle in there, and they taken mules and drove everything they said they found in that country," was all objected to in special ground as being hearsay, ground was properly overruled, since first part of testimony was not hearsay.

Admission of evidence objected to en bloc is not error, where some of evidence is admissible.

Refusal to charge that in commission of crime or misdemeanor there must be union or joint act and intention or criminal negligence is not error, where court fully charges on essential elements of crime with which accused is charged.

Error from City Court of Blackshear; Eldon L. Bowen, Judge.

T. H Bennett brings error.

Affirmed.

GUERRY J., dissenting.

A. J Tuten, of Alma, for plaintiff in error.

Memory & Memory and J. R. Walker, Jr., Sol., all of Blackshear, for the State.

Syllabus OPINION.

BROYLES, Chief Judge.

1. Under repeated rulings of the Supreme Court and of this court, a special ground of a motion for a new trial must be complete and understandable within itself; and where, in order to understand the assignment of error in such a ground and to ascertain whether the alleged error, if error, was prejudicial to the defendant's cause, it is necessary for the reviewing court to refer to some other portion of the record, the ground is too incomplete to be considered. In the instant case the first special ground of the motion for a new trial is as follows: "Because the court [erred] in admitting in evidence, over timely objection of defendant's counsel, the following material testimony of W. L. Johnson, a witness sworn in behalf of the State: 'I hired George Williams and J. M. Williams, they were familiar with cows, the cattle in there, and they taken mules and drove everything they said they found in that country.' Defendant objected to the admission of said evidence upon the ground that the same was hearsay, but the court admitted said evidence, although very material and most harmful to defendant, in that said evidence sought to prove by hearsay testimony that no such cattle were in existence." This was a criminal case, but this court cannot discover from the ground itself for what offense the defendant was on trial. To so determine, a reference to the accusation or to some other part of the record would be necessary. What materiality to the case has the evidence (complained of in the ground) as to "cows," "the cattle in there," and the driving by George and J. M. Williams of "everything they said they found in that country"? The ground fails to show the materiality of the evidence complained of, and does not disclose how or why the admission of the evidence was harmful to the defendant. Furthermore, even if the ground was complete enough to be considered, all of the evidence set forth in the ground was objected to as being hearsay evidence, and the following part, to wit: "I hired George Williams and J. M. Williams, they were familiar with cows, the cattle in there"-was clearly not hearsay, and the trial judge properly overruled the ground. American Ins. Co. v. Bailey & Musgrove, 6 Ga.App. 424 (4), 65 S.E. 160; Luke v. State, 26 Ga.App. 175 (1), 106 S.E. 199.

2. The second ground of the amendment to the motion for new trial is also without merit. Where evidence is objected to en bloc, and some of it is clearly admissible, the admission of the evidence is not error.

3. The record shows that the court charged the law of circumstantial evidence, and the special ground of the motion for a new trial complaining of the refusal so to charge is without merit.

4. It is not error, in the absence of request, or even with request, to fail to charge that "In the commission of a crime or misdemeanor there must be a union or joint act and intention or criminal negligence," where the court fully charges on the essential elements of the crime with which the defendant is charged.

5. The verdict was authorized by the evidence; and the refusal to grant a new trial was not error for any reason assigned.

Judgment affirmed.

BROYLES, C.J., and MacINTYRE, J., concur.

GUERRY Judge (dissenting).

1. T. H. Bennett was accused of the offense of cheating and swindling, under the Penal Code § 703, in that "the said T. H. Bennett in the county aforesaid, on the second day of March, 1931, * * * did falsely and fraudulently represent to A. P. Brantley, as president of the Blackshear Manufacturing Company, that he, the said T. H. Bennett, was the owner of 125 head of stock cattle, marked swallow fork in one ear and split and under square in the other ear, and that said cattle were located in and around his home place in Bacon county, Georgia, and did thereby procure from the Blackshear Manufacturing Company fertilizers and fertilizer material on credit to the amount and of the value of $581.55, * * * and did thereby deceive, cheat, and defraud the Blackshear Manufacturing Company in the sum of $372.15," etc.

In the first ground of the amendment to the motion for a new trial it is complained that the court erred in admitting certain evidence of the witness W. L. Johnson, sworn for the state which is as follows: "I hired George Williams and J. M. Williams. They were familiar with cows, the cattle in there, and they taken mules and drove everything they said they found in that country." The objection raised is that such evidence was hearsay. In a note by the trial judge to this ground it is stated that the testimony was admitted only for the purpose of "showing what the witness did." Penal Code, § 1023, declares that, "When, in a legal investigation, information, conversations, letters and replies, and similar evidence, are facts to explain conduct and ascertain motives, they are admitted in evidence, not as hearsay but as original evidence." If the testimony objected to can be considered original evidence under this section, the complaint is without merit. It appears from the evidence that on the 2d day of March the defendant made an affidavit to the Blackshear Manufacturing Company that he was the owner of 125 head of cattle marked swallow fork in one ear and split and under square in the other, the same being in and around his home place in Bacon county, and on the same day gave to said company a mortgage on the 125 head of cattle described in the affidavit along with other personal property. It appears that Bennett defaulted in payment of the note, and the mortgage was foreclosed. It appears that the sheriff in company with others made diligent search in and around the home place of the defendant and were unable to locate more than some 30 or 40 head of the cattle, the majority of which were claimed and found to be the property of his wife. The main fact upon which the state's case rested was that no such cattle were in existence, and, since the defendant admitted that he had not disposed of them, but that they were around his place somewhere, he did not own the cattle at the time he made the representation to the Blackshear Manufacturing Company to obtain credit. Several witnesses were introduced by the state to show that the cows were searched for but were not found. W. C. Fleming testified that he went up...