Garvin v. State

• Decision Date: 19 March 1948
• Docket Number: No. 31949.,31949.
• Citation: 47 S.E.2d 192
• Parties: GARVIN. v. STATE.
• Court: Georgia Court of Appeals

47 S.E.2d 192

GARVIN.

v.STATE.

No. 31949.

Court of Appeals of Georgia, Division No. 2.

March 19, 1948.

Syllabus by the Court.

1. Although there may be a ground of objection to evidence which if made would be good, yet if the objection which was made is not good, it is not error to overrule the same.. See Cox v. Cody & Co. et al., 75 Ga. 175(la); Giles v. Vandiver, 91 Ga. 192, 193(6), 17 S.E. 115. Accordingly an objection to evidence upon the single ground that the same is prejudicial is insufficient for the reason that evidence however prejudicial it may be, may at the same time be admissible. See Christian, etc., v. State, 30 Ga.App. 292(2), 118 S.E. 407.

2. An assignment of error in a motion for a new trial, complaining of the admission or rejection of evidence, is not valid when such evidence is not Hterally or in substance set forth in such motion, or attached thereto as an exhibit. See Sims et al. v. Sims et al., 131 Ga. "262(2), 62 S.E. 192 and see also many cases annotated under catchwords "Assignment of error" in Code, § 70-203.

3. In determining whether or not an excerpt from the charge of the court is erroneous the same must be construed with the charge in its entirety as conveying to the jury that meaning which the jury must necessarily have understood it to convey. If the excerpt is reasonably susceptible of two constructions, the sense in which it must have been understood by the jury may be determined from other provisions of the charge. See Georgia Railway & Power Co. v. Shaw, 40 Ga.App. 341(1), 149 S.E. 657.

Error from Superior Court, Fulton County; J. L. Renfroe, Presiding, Judge.

J. G. Garvin was convicted of unlawfully shooting at another, and to review a judgment overruling his motion for new trial, he brings error.

Judgment affirmed.

J. G. Garvin, hereinafter referred to as the defendant, was indicted in Fulton County for the offense of assault with intent to murder, for having on the 22nd day of April, 1947, unlawfully and with malice aforethought shot and wounded one Thomas E. Mason, hereinafter referred to as the victim, with a pistol.

Construing the evidence in its most favorable light in support of the verdict, the jury was authorized to find facts substantially as follows: That the victim is the brother of the former wife of the accused, Mrs. Glennie Estes, with whom the victim boarded at 1008 Arlene Ave. S. W., Atlanta, where the shooting occurred; they had been divorced on December 12, 1945; they had a child, the custody of whom was in the mother; that late on the afternoon of the date alleged in the indictment, the de-fendant came to the home and pushing open the front door, which was locked but had a weak spring and could easily be opened proceeded to the bedroom of the victim, and without sufficient provocation, and not in self defense, shot the victim through the right ankle with a pistol.

The jury found the defendant guilty of unlawfully shooting at another and fixed his sentence at not less than one or more than two years in the penitentiary. The sentence of the court was accordingly imposed and the defendant filed a motion for a new trial on the general grounds which was later amended by adding 3 special grounds numbered 4, 5 and 6.

The judgment of the trial court overruling the motion for new trial as amended is assigned as error

James R. Venable, Frank A. Bowers and Jackson L. Barwick, all of Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen. and William Hall, Asst. Sol. Gen., both of Atlanta, for defendant in error.

TOWNSEND, Judge. (after stating the foregoing facts).

1. Special ground 4 of the amended motion for new trial contends that the court erred in failing and refusing to declare a mistrial when the victim, while on the witness stand testified as follows:

"Q. Had you ever heard this defendant make any threats against your sister? A. Why, he has been arrested on numerous occasions for disorderly conduct.

"Mr. Venable: We want to object to that, if the Court please. We want now to ask this Court for a mistrial on the statement that was voluntarily made by this witness, which is prejudicial.

"The Court: Well, I overrule the motion. Don't tell anything that you don't know, Mr. Witness, of your own knowledge."

In Christian, alias Roberts, v. State, 30 Ga.App. 292, 118 S.E. 407, 408, a motion for mistrial was made on the sole ground that the testimony was prejudicial to the defendant. It was there held that "The mere fact that testimony introduced is prejudicial to the accused does not show that it is improper or inadmissible." (Italics ours.) The evidence complained of there was a voluntary statement by the witness, not particularly responsive to any question, and was highly prejudicial. When asked if he knew the defendant or saw him the witness replied, "That is the man. I identified him at once when I saw his picture in the rogues' gallery in New York." It is true that in the Christian case the trial judge, in strong language admonished the jury both at the time he overruled the motion for...