Eller v. State

• Decision Date: 05 January 1934
• Docket Number: 23173.
• Citation: 172 S.E. 592,48 Ga.App. 163
• Parties: ELLER v. STATE.
• Court: Georgia Court of Appeals

172 S.E. 592

48 Ga.App. 163

ELLER v. STATE.

No. 23173.

Court of Appeals of Georgia, First Division

January 5, 1934

Syllabus by the Court.

In blackmail prosecution, instruction on weighing evidence held not reversible error because omitting reference to personal credibility of witness (Civ. Code 1910, § 5732).

In blackmail prosecution, charge held not erroneous as predicating conviction on showing that defendant was threatening to accuse another of crime (Pen. Code 1910, § 118).

Charge predicating conviction for blackmail upon finding that threat or demand was "substantially" made as alleged in indictment held not erroneous because permitting state to prove "substantially" what was charged in indictment, or because predicating conviction on threat or demand (Pen. Code 1910, § 118).

Charge predicating acquittal of blackmail on finding of lack of intent on accused's part to extort money, "or on the part of any one else, whereby accused might have been acting in conjunction with another person," while not aptly worded, held not reversibly erroneous as requiring finding that no one had intent to extort money (Pen. Code 1910, § 118).

In blackmail prosecution, where principal defense was denial that accused attempted to extort money on threat of prosecution for crimes, failure to charge, without request defense that accused was merely trying to settle threatened actions on behalf of person threatened, held not reversible error (Pen. Code 1910, § 118).

In blackmail prosecution, excluding codefendant's testimony as to what person allegedly threatened said to codefendant in conversation had in absence of accused held not reversible error (Pen. Code 1910, § 118).

Evidence sustained conviction for accusing another of crime and threatening prosecution with intent to extort money (Pen Code 1910, § 118).

1. The court did not commit reversible error in failing to instruct the jury upon the principle of law laid down in the Civil Code 1910, § 5732, as to the "personal credibility of the witness so far as the same may legitimately appear from the trial in said case."

2. The charge complained of in special ground 2 is not subject to the criticism that it was an instruction to the jury that it was only necessary for the state to show that the defendants were threatening to accuse another of a crime.

3. The charge complained of in special ground 3 was not erroneous either because it "permitted the State to prove substantially what was charged in the indictment," or because "it permitted the jury to consider a threat or demand as sufficient to authorize a conviction."

4. While the charge complained of in special ground 4 is not aptly framed, it was not, under the evidence, reversible error.

5. The principal defense made by the defendant to the charge of blackmail under section 118 of the Penal Code 1910, was that he did not commit the acts charged in the indictment, and the court did not err in failing, without request, to charge a defense which was in the nature of an amplification of the main defense, and collateral to it.

6. The court did not commit reversible error in excluding certain testimony, as complained of in special ground 6.

7. The evidence supports the verdict.

Error from Superior Court, Chattooga County; James Maddox, Judge.

Lee Eller was convicted of an offense, and he brings error.

Affirmed.

Porter & Mebane and Wright & Covington, all of Rome, and Jno. D. & E. S. Taylor, of Summerville, for plaintiff in error.

J. F. Kelly, Sol. Gen., of Rome, and J. Ralph Rosser, of La Fayette, for the State.

MacINTYRE Judge.

The indictment in this case contains two counts, the first charging that on September 30, 1931, in Chattooga county, Lee Eller and Roy Baker did "verbally accuse H. F. McWhorter with the crime and offense of unlawfully opening United States mail, with the intent then and there to extort three hundred dollars in money of the value of three hundred dollars, which amount the said accused then and there demanded and did then and there threaten to prosecute said H. F. McWhorter unless the amount so then and there demanded was paid them." The second count charges that "on the day and date and in the county aforesaid" the same defendants "did then and there *** verbally accuse H. F. McWhorter with the offense of forgery of the name of Floyd Thompson on a certain check, the exact description of which is unknown to the grand jury, with intent to extort from him the said H. F. McWhorter, the sum of three hundred dollars in money of the value of three hundred dollars, and they, the said accused did then and there threaten to prosecute the said H. F. McWhorter for forgery unless the amount then and there demanded of him was then and there paid." The jury found a general verdict of guilty against the defendants, and Lee Eller excepted to the judgment overruling his motion for a new trial.

Special ground 1 complains of the following charge of the court: "In determining what weight you may attach to the testimony of any witness, you may look to his or her appearance on the stand; take into consideration their manner of testifying, their interest or want of interest in the case, their feeling, prejudice or bias, if anything of the sort has been made to appear, together with their opportunity of knowing the facts about which they testify." This excerpt is assigned as error "for the reason that said charge *** failed to give to the jury the entire principle of law applicable to the weight to be given by them to the evidence of a witness, in that it omitted *** the question of the personal credibility of the witness so far as the same might legitimately appear upon the trial of said case." To sustain this contention, counsel rely upon the case of Shankle v. Crowder, 174 Ga. 399 (8), 410, 163 S.E. 180, where the Supreme Court held that, having undertaken to charge the rule for determining where the preponderance of evidence lies, as laid down in the Civil Code 1910, § 5732, the trial judge committed reversible error in omitting the provision that the jury may consider the witness' "personal credibility so far as the same may legitimately appear from the trial." While the "preponderance of evidence rule" is always applicable in a civil case, it is inappropriate in a criminal case, where the state is required to prove the guilt of the accused beyond a reasonable doubt. Williams v. State, 125 Ga. 302 (3), 306, 54 S.E. 108; Helms v. State, 138 Ga. 826 (5, 6), 76 S.E. 353. It is ordinarily inapt to charge section 5732 in a criminal case, but so doing is not reversible error if the instruction appears to be harmless. Gale v. State, 135 Ga. 351 (5), 69 S.E. 537. In passing, it may be observed that, while in the instant case the judge charged some of the ways of determining the credibility of a witness, as laid down in section 5732, supra, he carefully refrained from saying or intimating that the defendant's guilt or innocence was to be determined by the preponderance of the evidence. It is also true that, immediately after giving the jury the instruction complained of, the court charged them as follows: "If you find there are material conflicts in the evidence, or conflicts about material matters, you ought to endeavor to reconcile all such conflicts, if you can do so, so as to make each and every witness speak the truth, and without imputing perjury to any witness, the law presuming they are all honest and tell the truth, until the contrary appears by proof; but if, after an honest effort to so reconcile the evidence, you can not do so, then you should believe that which to you is the most reasonable and credible, that which, as honest and conscientious jurors wanting to do right and render a just verdict, you believe to be the truth of the alleged transaction, viewing it in the light of all the surroundings as detailed from the witness stand, and in the light of human conduct, or reason and common sense." We hold that the ground discloses no reversible error.

Special ground 2 complains of the following charge of the court "You will readily see from reading this section that it is not necessary or incumbent upon the State to show that the person sought to be blackmailed under this section was not guilty of an offense or a crime, but it is only necessary for the State to show that the person who was attempting to blackmail (and of course these are questions entirely for you) was threatening to accuse another of a crime or offense. As stated, it is immaterial whether the person sought to be blackmailed was guilty or not guilty. The question for the jury to determine is whether or not he was accused by the person who was attempting to blackmail him, if there was any such conduct --if he was accused of a crime or of an offense; and I charge you that must be done with the intent to extort money or other thing of value. It is immaterial as to whether or not the money was actually extorted or paid, the question being as to whether it was done with that intent or not." The gist of the assignment of error is that the first count of the indictment charges merely that the defendants accused McWhorter of the offense of unlawfully opening the United States mail, and the court erred in instructing the jury that it was only necessary for the state to show that the defendants were threatening to accuse another of a crime. The indictment was drawn under section 118 of the Penal Code 1910, which reads: "If any person shall, verbally, or by printing or writing, accuse another of a crime or offense, or expose or publish any of his or her personal or business acts, infirmities, failings, or compel any person to do any act, or to refrain from doing any lawful act, against his will, with intent to extort money or other thing of...