Frank v. State

• Court: Georgia Supreme Court
• Writing for the Court: ATKINSON
• Citation: 80 S.E. 1016,141 Ga. 243
• Decision Date: 17 February 1914
• Parties: FRANK v. STATE.

80 S.E. 1016
141 Ga. 243

FRANK
v.
STATE.

Supreme Court of Georgia.

Feb. 17, 1914.

(Syllabus by the Court.)

1. Homicide (§§ 174, 338*)—Haemless Error —Admission of Evidence.

On the trial of one accused of the murder of a young girl in a factory building, of which he was the superintendent, where circumstantial evidence is relied upon largely, if not wholly, to prove the defendant's guilt, it is not sufficient cause for a new trial, under the special facts of the case, that the state was permitted to prove the demeanor of the night watchman of the factory, and also that of the accused, on the morning after the discovery of the body of the deceased.

[Ed. Note.—For other cases, see Homicide. Cent. Dig. §§ 359-371, 709-713; Dec. Dig. §§ 174, 338.*]

2. Criminal Law (§§ 369, 371, 372*) — Evidence—Other Offenses—Motive.

A young girl was killed in a pencil factory on Saturday afternoon, which was also a public holiday, when the factory was not in operation. The evidence showed that she went to the office of the superintendent to draw her pay, and no witness testified to having seen her alive thereafter. There was other evidence from which the jury might infer that the killing occurred in a room on the same floor where the office of the superintendent was situated. An employe of the factory, who was present in the building, testified that on that morning the accused had said to him that he desired the witness to watch for him, as the witness had "been doing the rest of the Saturdays, " or "other Saturdays" J that he did watch at the door when the girl went up to the office of the accused; that he heard her scream; and that subsequently the accused called on him to assist in removing the body of the deceased. He also testified to certain signals given by the accused to him while watching. Held, that it was competent to show by the witness how he had been watching for the accused on previous Saturdays, and to explain the system of such alleged signals employed by the accused, and the reference thereto by the accused.

(a) The same witness testified that after the girl had gone to the office of the accused, and he had heard footsteps going in the direction of the place where he first saw the body, and after hearing the scream and the signal from the accused, the latter told the witness that he "wanted to be with the little girl, " and she refused him, and he struck her, and guessed he struck her too hard, and she fell and hit her head against something, and he did not know how badly she was hurt. The witness then stated that the accused added: "Of course, you know I ain't built like other men." From the condition of the body it might have been inferred that the person who did the killing sought to have a sexual relation, natural or unnatural, with the deceased, and that the blow did not cause death, but it was brought about by choking the deceased with a cord. Held, that it was relevant to explain the expression above quoted, by showing previous transactions of the accused, known to him and the witness, which indicated that his conduct in sexual matters differed from that of other men.

(b) As a general rule, evidence of the commission of one crime is not admissible upon a trial for another, where the sole purpose is to show that the defendant has been guilty of other crimes, and would, therefore, be more liable to commit the offense charged; but if the evidence is material and relevant to the issue on trial, it is not inadmissible because it may also tend to establish the defendant's guilt of a crime other than the one charged.

(c) Under the rule just announced, the evidence of the witness above mentioned, which it was sought to withdraw from the jury, and also the evidence of another witness, which corroborated him in regard to other improper transactions with women, in which the accused took part, occurring at the same place, not a great while before the homicide, and in regard to the watching by the first witness while lascivious practices were being engaged in at that place, and in regard to compensating him therefor, was admissible as throwing light upon the motive of the accused, and also as indicating his design or scheme in regard to his practices at that place, in connection with which the evidence authorized the jury to find that the murder occurred, and as tending to show the identity of the criminal.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 822-824, 830-834; Dec. Dig. §§ 369, 371, 372.*]

: s. Homicide (§ 174*)—Evidence — Admissibility.

Under the facts of the case it was not irrelevant to show, as a circumstance indicating a consciousness of guilt, that the defendant, who had manifested an apparent interest in ferreting out the perpetrator of the homicide, for the commission of which he was subsequently indicted, and had taken part in the employment of a detective for that purpose, and had interviewed one person suspected and in custody, refused an interview with one who testified, on the trial, to circumstances indicating that the defendant was aware of the witness' knowledge of the defendant's guilt, when such interview was proposed by detectives, including the one he had employed.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. § 174.*]

4. Criminal Law (§ 488*)—Expert Testimony—Details of Experiment.

Where the testimony of an expert is competent, he may be permitted to give the de-

[80 S.E. 1017]

tails of experiments on which his testimony is based.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1079; Dee. Dig § 488.»]

5. Criminal Law (§ 1169*)—Harmless Error—Admission of Evidence.

The details of a controversy between the former president and secretary of the state board of health in their official relation were foreign to any issue involved on the trial of the case. The testimony was provoked by a question propounded by counsel for defendant on direct examination of his witness, the testimony did not tend to obscure any issue in the case or to prejudice the defendant, and the reception in evidence of the extract from the minutes of the state board of health, dealing with such controversy, is not ground for new trial.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.*J

6. Criminal Law (§ 1170 1/2*)—Witnesses (§ 330*) — Harmless Error — Evidence — Rebuttal.

Where it was material to show at what time the girl who was killed arrived at the factory in which the homicide occurred, and as to this point the contentions of the state and accused differed, as well as in regard to the point at which she left a street car in which she came from her home, and the defendant introduced evidence to show the schedule time at which the car was due to arrive at a certain point where it was claimed on behalf of the state that she left it, and the time it would require for the car to go from that point to another at which the accused claimed that the girl alighted, as well as the testimony of certain witnesses that the car in question reached the first point at the time fixed by the schedule (specifying it), and one of them testified, on cross-examination, that "we" never arrived in advance of schedule time, and where the defendant also introduced other evidence as to schedules of the street cars on another route, in the effort to account for the defendant's presence at other places at certain times during the day, it was competent for the solicitor general to thoroughly sift the witnesses introduced by the accused, on cross-examination, and also to introduce evidence in rebuttal, tending to show, in addition to the fact that the testimony of a witness for the accused was inexact in regard to the schedule, that in fact the car on the line traveled by the girl in going from her home to the factory frequently arrived at the point above mentioned several minutes in advance of the schedule time.

(a) If in any respect the cross-examination or the evidence introduced in rebuttal was not strictly within the proper range of such evidence, it was not of such a character as to require a reversal.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170 1/2;* Witnesses, Cent. Dig. 1106-1108; Dec. Dig. § 330.*]

7. Homicide (§ 165*)—Evidence—Admissibility.

The testimony referred to in the seventh division of the opinion was relevant, and was properly received by the court. " [Ed. Note.—For other cases, see Homicide, Cent. Dig. § 319; Dec. Dig. § 165.*]

8. Witnesses (§ 379*)—Impeachment.

A witness testified to matters material to the defense. She was asked if her wages had not been increased by the parents of the accused's wife, and if a gift had not been made to her by the wife of the accused, and answered in the negative. Upon laying the proper foundation for impeachment, it was competent to in troduce her own affidavit and the testimony of another witness to show that she had made statements contradictory of her testimony stated above.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §8 1209, 1220-1222, 1247-1256; Dec. Dig. § 379.*]

9. Criminal Law (§ 380*)—Character Witness—Cross-Examination.

On the trial of one for the murder of a female, where the testimony tended to show that the drawers of the victim of the homicide were torn and her sexual organ had suffered external violence, and that the homicide was committed in consequence of an effort to have some sort of sexual relation with the deceased, and the defendant introduced a witness to establish his good character, it was competent, on cross-examination, to ask such witness if he had not heard of certain lascivious acts of the defendant with other females.

[Ed. Note.—For other cases, see Criminal Laws, Cent. Dig. §§ 843, 845; Dec. Dig. § 380.*]

10. Criminal Law (§ 380*)—Character Evidence—Rebuttal.

Likewise, under the circumstances referred to in the preceding note, where the defendant introduced evidence of his good character, the...