Grace v. State
| Decision Date | 02 July 1934 |
| Docket Number | 23445. |
| Parties | GRACE v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by Editorial Staff.
In prosecution for larceny of automobile found burned, state could show anything found in automobile that tended to connect accused with crime.
Acts conduct, and declarations of conspirator during pendency of wrongful act, either in its actual perpetration or its subsequent concealment, are admissible against coconspirator.
Allowing defense witness to testify on cross-examination, over timely objection, that witness had served federal sentence held error requiring new trial, since impeachment attempted required showing by competent evidence that witness was convicted of crime involving moral turpitude.
In prosecution for larceny of automobile, charge that if accused were party to conspiracy to steal automobile, "after the automobile was stolen," no statement or admission by coconspirator or any other, not made in accused's presence, could bind accused held properly refused.
Error from Superior Court, Floyd County; James Maddox, Judge.
Eugene Grace was convicted of larceny of an automobile, and he brings error.
Reversed.
Porter & Mebane, of Rome, for plaintiff in error.
Jas. F. Kelly, Sol. Gen., of Rome, and J. Ralph Rosser, of La Fayette, for the State.
Syllabus OPINION.
1. No error appears in the first special ground of the motion for new trial. Although the statement itself might have been objectionable as mere hearsay, the error in admitting it as evidence was subsequently cured when the witness on whose veracity and competency the state depended testified to the same fact.
2. Where the crime charged against the defendant is larceny of an automobile, which when found was burned, it is permissible for the state to prove or show anything found in the car that tends to connect defendant with the crime, and although the evidence complained of in the second ground of the amendment to the motion for a new trial might have been and was irrelevant, yet in view of the other evidence in the case and the statement of the trial judge in limiting such testimony to a particular purpose, the admission of such testimony was harmless error.
3. Whether or not statements made about twenty minutes after the larceny was committed, to the effect that "somebody stole the car," were admissible as part of the res gestæ, the admission of such statement is not cause for new trial, in view of other evidence of the same fact.
4. Acts, conduct, and declarations of one conspirator during the pendency of the wrongful act, not alone in its actual perpetration but also in its subsequent concealment, are admissible against another conspirator. See Smith v. State, 47 Ga.App. 797, 171 S.E. 578.
(a) This ruling disposes of grounds 4, 5, and 6 of the amendment to the motion for a new trial.
5. In order to impeach a witness it must be shown that the crime of which he was convicted was one involving moral turpitude, and this must be shown by competent evidence. It was therefore error, requiring the grant of a new trial, for the trial judge to allow, over timely objection of defendant's counsel, a defense witness to testify, on cross-examination by the solicitor, that "he had served a Federal sentence at Fort Leavenworth, Kansas, in the U.S. penitentiary of 7 months and 18 days." See, in this connection, Howard v. State, 144 Ga. 169, 86 S.E. 540; Wheeler v. State, 4 Ga.App. 325, 61 S.E. 409; Johnson v. State, 48 Ga. 116; Swain v. State, 151 Ga. 375, 107 S.E. 40; Groves v. State, 175 Ga. 37, 164 S.E. 822; Lovinger v. State, 39 Ga.App. 116, 146 S.E. 346.
6. The ninth ground of the amendment to the motion for a new trial is without merit.
7. It was not error for the trial judge to refuse the request to charge as follows: "I charge you that if you should find that the defendant in this case was a party to a conspiracy to steal the prosecutor's automobile, then, after the automobile was stolen, if it was stolen, no statement nor admission by any party to the conspiracy, nor any statement nor any admission by any one else, not made in the presence of the defendant, would not and could not bind the defendant and any incriminatory statement or admission by any one not made in the presence of the defendant would be hearsay of no probative value so far as the defendant is concerned and not binding on the defendant." The request to charge, as applied to the facts of the case, is exposed to several criticisms. See ruling made in Smith v. State, supra. The request did not state that after the ending of the criminal conspiracy no act or declaration of any of the conspirators would be admissible against the others, ...
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