Corbin v. State

• Decision Date: 03 March 1950
• Docket Number: No. 2,No. 32770,32770,2
• Citation: 81 Ga.App. 353,58 S.E.2d 485
• Parties: CORBIN v. STATE
• Court: Georgia Court of Appeals

Page 485

58 S.E.2d 485

81 Ga.App. 353

CORBIN v. STATE.

No. 32770.

Court of Appeals of Georgia, Division No. 2.

March 3, 1950.

Rehearing Denied March 24, 1950.

Syllabus by the Court.

The evidence authorized the verdict and the special grounds of the motion for a new trial show no cause for reversal.

The defendant Claude Corbin, was indicted for the unlawful possession of dynamite. He was tried, convicted, and sentenced to serve from two to five years in the penitentiary and to pay a fine of $2000. He made a motion for a new trial based upon the general grounds and eight special grounds. The court overruled the motion and the defendant excepted.

Poole, Pearce & Hall, Atlanta, William F. Lozier, Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., Atlanta, William Hall, Atlanta, for defendant in error.

MacINTYRE, Presiding Judge.

1. The defendant contends that the following testimony of the witness Robert H. Cording: 'It would take a great deal of force or a terrific explosion to move a fifteen hundred pound meter a distance of three inches,' was erroneously admitted in evidence over the objection that it was a conclusion of the witness and that the witness had not been properly qualified as an expert to give in his testimony such conclusion or opinion. The fifteen hundred pound meter here referred to was a part of the machinery, or mechanical apparatus, of the White Provision Company. The witness Cording also testified that he was chief engineer at the White Provision Company at whose plant the alleged explosion took place; that he had been employed there for about sixteen years; that he had received his education at Carnegie Institute of Technology from which he graduated in 1923 with a degree in mechanical engineering; he first worked for Westinghouse installing machinery, etc., later he went with Swift & Company, Construction Department, before he went with White Provision Company; as chief engineer of the White Provision Company his department was charged with the duty of maintenance and repair and installation of all equipment, new buildings, repairs to old buildings, and anything to do with the physical plant, including mechanical devices and electrical apparatus. This witness qualified prima facie as an expert and was entitled to give his opinion on this subject, based upon his observations. Additionally, the witness stated the facts upon which his opinion was predicated. When an expert testifies to facts within his knowledge, it is not necessary that the question propounded by stated hypothetically. An expert may base his opinion upon facts which he knows and has observed. Sims v. State, 40 Ga.App. 10, 13, 148 S.E. 769; McDowell v. State, 78 Ga.App. 116, 50 S.E.2d 633; Metropolitan Life Insurance Co. v. Saul, 189 Ga. 1(2), 5 S.E.2d 214; Clary v. State, 8 Ga.App. 92(2), 68 S.E. 615; Davis v. State, 153 Ga. 669, 674, 112 S.E. 891; Yates v. State, 127 Ga. 813, 56 S.E. 1017, 9 Ann.Cas. 620; Wallace v. State, 204 Ga. 676, 51 S.E.2d 395.

2. Special ground 2 complains of the admission in evidence of the following testimony, over objection: 'At the time of the explosion a strike had been in progress about a month. It was a very turbulent strike, constant succession of incidents.' The objection made to the admission of this testimony was: 'Your Honor, I object to that on the grounds that it's both irrelevant and immaterial to the issue which is on this bill of indictment.' Irrespective of whether the objection is too general to raise a question for determination by this court (See Owen v. State, 78 Ga.App. 558(2), 51 S.E.2d 602), the evidence was admissible to show motive. In Wharton's Criminal Evidence, 11th Ed., Vol. I, pp. 288, 307, §§ 246, 255, it is written: 'Section 246: * * * It is, however, always proper for the prosecution to offer evidence of motive. * * * An inquiry in this regard is often of great importance, particularly in cases of circumstantial evidence. It assists in fixing the crime upon the proper person, and, in some cases, is strongly instrumental in determining the degree of the offense * * *. In the introduction of evidence to show motive, a wide range is permitted * * *. Any fact which logically tends to show a motive or which fairly tends to explain the actions of the accused, should be admitted. Thus, evidence of ill-feeling and trouble between accused and the victim of a homicide, or of improper relations or affections of the accused for the wife of the deceased is admissible. * * * Section 255. Evidence of previous quarrels and ill feeling is always relevant to show motive, with the limitation that a connection be shown to exist between the difficulty and the crime charged * * *. Quarrels between the families of the accused and of the deceased; dissatisfaction with a previous settlement of wages between the parties * * * may be shown.' The following Georgia cases are in accord with the foregoing principles: Pulliam v. State, 199 Ga. 709, 35 S.E.2d 250; Johnson v. State, 130 Ga. 22(2), 60 S.E. 158; Weldon v. State, 158 Ga. 140(4), 123 S.E. 217; Ricks v. State, 206 Ga. 20, 55 S.E.2d 576.

'On a motion for a new trial on the question of whether a judgment should be reversed on account of the introduction of evidence injected into the case which the defendant contended was irrelevant and immaterial, the defendant's statement and the whole evidence, properly admitted, that introduced before and that introduced after the ruling on the admissibility of the evidence in question, may be considered in determining the relevancy and materiality of such evidence. Fuller v. State, 197 Ga. 714(2), 718, 30 S.E.2d 608; Holland v. State, 148 Ga. 277(2), 96 S.E. 419.' Hardison v. State, Ga.App., 58 S.E.2d 481. Considering the entire evidence, the evidence here objected to was admissible in that it was relevant and material upon the question of motive.

3. Special ground 3 complains of the refusal to permit the witness Cording, on cross-examination, to answer the following question: 'Now, as far as you know, they could have made changes in the physical surroundings of the area between the time you were out there, on Thursday morning, and the time these pictures were made?' The rule is that "the trial judge has a discretion to control the right of cross-examination within reasonable bounds, and an exercise of this discretion will not be controlled by a reviewing court, unless it is abused.' Rogers v. State, 18 Ga.App. 332(2), 89 S.E. 460; Granison v. State, 49 Ga.App. 216, 174 S.E. 636; Fields v. State, 46 Ga.App. 287(3), 167 S.E. 337.' Aycock v. State, 62 Ga.App. 812, 815, 10 S.E.2d 84, 86. We think that the prior cross-examination had sufficiently developed what knowledge the witness had as to whether a change had been made in the surroundings of that area between the time the witness was there on Thursday morning and the time the pictures in question were made and we think the court did not abuse his discretion in not allowing the defendant to continue this cross-examination on this matter by asking the question here, which was more in the nature of arguing with the witness than in the form of cross-examination. We do not think the court committed reversible error in not allowing the question to be answered.

4. Special ground 5 complains of the court's failure to declare a mistrial on account of certain improper remarks made by the assistant solicitor during the progress of the trial. The remarks complained of and the action taken by the court is as follows:

1. 'Q. (By Mr. William Hall, Assistant Solicitor for the State): 'Mr. Lozier asked you how many explosions that you had observed in your lifetime. I ask you, whether shortly after this dynamite explosion here in Atlanta, that you--your company also had an explosion down in Moultrie, Georgia, which dynamite was used in connection with a strike by the C. I. O. Union which was in progress down in Moultrie, Georgia?' A. (By Mr. Robert H. Cording, Witness for State): 'Yes, Sir.'

'The Court: 'Wait just a minute Mr. Cording.'

'Mr. Lozier (Counsel for movant): 'Your Honor, I object to that on the ground that it is irrelevant and immaterial; it's highly prejudicial to the defendant in this case and I ask that the court declare a mistrial.'

'The Court: 'I overrule the motion. I sustain the objections and I instruct the jury to disregard the question and answer last asked of the witness and answered by the witness.''

2. 'Q. (By Mr. William Hall, Assistant Solicitor for the State): 'Did you go to Moultrie at the time they had the explosion down there?' A. (By Mr. Robert H. Cording, Witness for State): 'No sir.'

'Mr. Lozier (Counsel for Movant): 'Your Honor, I object to that question. The solicitor has stated a fact that there was an explosion at Moultrie. I think it's highly prejudicial to the defendant in the case and I ask the court to declare a mistrial.'

'The Court: 'I overrule the motion.'

'Mr. Lozier: 'I ask that the question be stricken, your Honor, on the ground it is irrelevant and immaterial.'

'Mr. William Hall: 'I ask your Honor to strike it from the record. You can come down.'

'The Court: 'It is stricken."

This ground really contains objections to two rulings of the trial court. The first question posed by the assistant solicitor, under the evidence and the circumstances of this case, was inaptly worded, but the court itself interrupted the witness in answering the question, and upon the objection of counsel for the defendant to the question and motion for mistrial, the court overruled the motion to declare a mistrial and instructed the jury to disregard the question and answer. We think that in view of the corrective measure taken by the court it did not commit reversible error in refusing to grant the motion for mistrial. Herring v. State, 10 Ga.App. 88(2), 72 S.E. 600; Daniels v. State, 58 Ga.App. 599, 600(3), 199 S.E. 572; Loomis v. State, 78 Ga.App. 153, 179, 51 S.E.2d 13.

As to the second question...