Bush v. State
| Decision Date | 05 February 1968 |
| Docket Number | No. 1,Nos. 43373,43374,s. 43373,1 |
| Citation | 160 S.E.2d 456,117 Ga.App. 310 |
| Parties | C. L. BUSH v. The STATE (two cases) |
| Court | Georgia Court of Appeals |
Dan Copland, Columbus, for appellant.
W. B. Skipworth, Jr., Sol. Gen., Frank K. Martin, Columbus, for appellee.
Syllabus Opinion by the Court
1. Where, because of inability of the jury to agree upon a verdict, a mistrial was declared by the court, and at a subsequent term the defendant was again put on trial under the same indictment, a plea of former jeopardy was properly overruled. Williford v. State, 23 Ga. 1; Nolan v. State, 55 Ga. 521, 524, 21 Am.Rep. 281; Watkins v. State, 60 Ga. 601; Lovett v. State, 80 Ga. 255, 4 S.E. 912; Stocks v. State, 91 Ga. 831, 18 S.E. 847; Hyde v. State, 196 Ga. 475, 26 S.E.2d 744.
2. Enumerations of error 2 through 12, inclusive, and 15 and 16 all deal with objections made to the questioning of a witness by the court relative to a photograph which the witness had identified as showing the rear of the building that the defendant was charged with having burglarized. The court asked whether the photograph was a true and correct portrayal, and the witness answered that it was, except that it also showed the presence of an individual and some parked automobiles which had nothing to do with the event. The court admitted the photograph, tendered by the State, and instructed the jury to disregard the presence therein of the individual and the cars.
Defendant contended that this questioning of the witness by the court was calculated to give the jury an impression that the court was assisting the State and that the court had some opinion as to the defendant's guilt. A motion for mistrial on this ground was denied. There was a similar motion and denial because the court instructed counsel for the defendant that he must be specific in his questions to witnesses, and that the court was hasty in overruling numerous objections which defendant interposed.
We find no error in the conduct of the court in any particular referred to in the several enumerations of error. They are without merit.
3. A witness for the State testified that he was a stockholder in the McCrory Corporation, which was alleged in the indictment to have been the owner of the business at the location which the defendant was charged with burglarizing. On cross examination he asserted that he knew of the corporate existence of the company by his stock certificates, but admitted that he had never seen the charter and was not present when it was incorporated, and thus had no personal knowledge of that. There was no error in overruling a motion to exclude the testimony of the witness 'that he is a stockholder in McCrory Corporation.' Though he may not have been present at the time of the granting of the charter and may never have seen it, that he holds stock certificates issued by the company to him and he is thus a stockholder is a fact within his knowledge.
Moreover, an allegation in the indictment that the owner of the business was a corporation was surplusage which need not be proven. Crawford v. State, 68 Ga. 822; Alsobrook v. State, 126 Ga. 100, 102(2), 54 S.E. 805; Ager v. State, 2 Ga.App. 158, 58 S.E. 374; Moore v. State, 25 Ga.App. 251(2), 102 S.E. 916; Moore v. State, 30 Ga.App. 128(2), 117 S.E. 472; Douglas v. State, 51 Ga.App. 141(1), 179 S.E. 857; King v. State, 83 Ga.App. 175(b), ...
To continue reading
Request your trial
-
Ramirez v. State
...by a failure of the jury to agree on a verdict is not a case of double jeopardy in this state. See in this connection Bush v. State, 117 Ga.App. 310 (160 SE2d 456); Harwell v. State, 230 Ga. 480 (197 SE2d 708). It was within the discretion of the trial court to discharge the jury when they ......
-
State v. Tate
...47, and Jessen v. State, 234 Ga. 791(1), 218 S.E.2d 52. See also Harwell v. State, 230 Ga. 480, 197 S.E.2d 708, and Bush v. State, 117 Ga.App. 310(1), 160 S.E.2d 456 and citations In its brief at page 7 the State concedes the trial court's order was correct as to the dismissal of the kidnap......
-
Hooks v. State, 52071
...by a failure of the jury to agree on a verdict is not a case of double jeopardy in this state. See in this connection Bush v. State, 17 Ga.App. 310, 160 S.E.2d 456; Harwell v. State, 230 Ga. 480, 197 S.E.2d 708. It was within the discretion of the trial court to discharge the jury when they......
-
Hill v. State, 43587
...175 S.E. 400; King v. State, 83 Ga.App. 175(b), 63 S.E.2d 292; Raptis v. State, 92 Ga.App. 485, 487(2), 88 S.E.2d 731; Bush v. State, 117 Ga.App. 310(3), 160 S.E.2d 456. 2. It was not error to admit testimony that the place burglarized was owned by McCrory Corporation over objection that 'T......