Grant v. State
| Decision Date | 10 May 1905 |
| Citation | 50 S.E. 946,122 Ga. 740 |
| Parties | GRANT. v. STATE. |
| Court | Georgia Supreme Court |
GAMING—EVIDENCE—WITNESS —EXAMINATION BY JUDGE—CROSS-EXAMINATION —INSTRUCTION.
1. On the trial of a defendant indicted for gaming, where a witness testified that he was chief of police of a town in this state, that while on duty as such he detected a crowd gaming in a back room, that when he went into the room the defendant was one of the party and had cards in his hand, that those present were much excited and dispersed quickly, and that the defendant had been away from the town for some time before the trial, and where the defendant admitted his presence at the game, but denied that he took part in it, there was no error in allowing the witness to testify that some months thereafter he visited a neighboring city, where he met the defendant, and that the latter ran off as soon as he saw the witness.
2. The fact that the witness had no authority to make an arrest at that time and place, and that he may have intended to do so, would not render the evidence inadmissible. It would be for the jury to determine whether the flight of the defendant upon seeing the policeman who had interrupted the game of cards was due to a sense of guilt or to other reasons.
3. While on proper occasion the presiding judge has a right to interrogate a witness on the stand, this should not be done in such a way as would have a tendency to cast discredit upon the witness.
[Ed. Note.—For cases in point, see vol. 50, Cent. Dig. Witnesses, § 852.]
4. Where on cross-examination a witness was asked as to whether he had been previously convicted of gaming, and answered that he had pleaded guilty on one occasion, but had not been convicted at any other time, it was error for the presiding judge to cross-examine the witness as to whether he had not been convicted twice, and, after the witness had left the stand, to explain to the jury that he had been under the impression that the witness had been twice convicted, but upon investigating the docket he found that the witness had pleaded guilty once, and in another case he had demanded an indictment by the grand jury, and that was the last entry the judge saw on the docket in reference to that case.
5. Upon proper request, the court should instruct the jury in regard to determining the credibility of witnesses and weighing evidence; but an assignment of error, in a petition for certiorari, that counsel requested the court in writing to charge two sections of the Penal Code, and one section of the Civil Code, specified by number only, and that the court charged one of them but refused the other two, will not require a reversal, where one of the sections so specified relates to the subject of positive and negative testimony, but is not accompanied by any request to instruct the jury to consider the credibility of witnesses in connection therewith, and where the other section mentioned by number contains language as to "preponderance of evidence" not aptly adjusted, as it stands, to a criminal case.
(Syllabus by the Court.)
Error from Superior Court, Morgan County; H. G. Lewis, Judge.
Robert Grant was convicted of gaming, and brings error. Reversed.
Williford & Middlebrooks, for plaintiff in error.
Jos. E. Pottle, Sol. Gen., and E. W. Butler, for the State.
LUMPKIN, J. 1, 2. Robert Grant was indicted for gaming, and tried in the county court of Morgan county. After conviction, he carried the case to the superior court by writ of certiorari. Upon the hearing the petition for certiorari was "disallowed and overruled, " and a new trial refused. Whereupon he excepted.
On the trial a witness was introduced, who testified substantially as follows: He was the chief of police of the town of Madison, and while on duty surprised a party of negroes gambling in a back room. They were gathered around a box on which were money and cards. He heard some one say, "Put down, " "That's my bet, " etc., but did not know who made the remark, nor see any one handling the cards and money. Defendant had cards in his hand. The witness struck a match and spoke to those present. They were all very much excited, and dispersed quickly. He did not see the defendant take up any cards when he struck the match. Defendant had been away from town for some time before the trial. The defendant did not deny being present at the game, but claimed that he was not a participant, and introduced evidence for the purpose of sustaining this defense. The witness above referred to was recalled, and testified that he was in Atlanta the summer preceding the trial (which was November 9, 1903), and saw the defendant, and that the latter ran off—went out of a side door—as soon as he saw the witness. The witness was not then acting as an officer, but went to Atlanta on pleasure, saw the defendant, and thought he would bring him home, when the defendant ran away from him. This was objected to on the ground that the witness was not an officer in Atlanta but only a citizen, and that he had no authority to arrest the defendant unless he was an officer and had a warrant for his arrest. The objection was overruled, and the evidence admitted.
"Evidence of circumstances which are part of a person's behavior subsequent to an event with which it is alleged or suspected he is connected with or implicated in are relevant if the circumstances are such as would be natural and usual, assuming the connection or implication to exist." Und. Crim. Ev. § 115. In McAdory v. State, 62 Ala. 154, it was said, that "any indications of a consciousness of guilt, by a person suspected of or charged with crime, or who may after such indications be suspected or charged, are admissible evidence against him." In People v. Welsh, 63 Cal. 167, 168, it is said that Of course, the conduct of the defendant may sometimes be a part of the res gestae of the criminal act itself; but where the purpose is to show acts from which an inference may be drawn of a consciousness of guilt, they need not necessarily be at the time of or immediately after the alleged crime. People v. Stanley, 47 Cal. 114, 118, 17 Am. Rep. 401; Roscoe, Crim. Ev. § 18. On the subject of flight and similar acts from which an inference of consciousness of guilt may be drawn, see Hunter v. State, 43 Ga. 483 (3): Sewell v. State, 76 Ga. 836; Wynne v. State, 56 Ga. 114 (5); ...
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