Harris v. State
| Decision Date | 25 July 1907 |
| Docket Number | 588. |
| Citation | 58 S.E. 669,2 Ga.App. 406 |
| Parties | HARRIS v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where it appears, without contradiction, in the evidence, that the offense alleged to have been committed, if committed at all occurred within two years prior to the filing of the accusation, an instruction that the state only has to prove that the transaction "happened two years prior to the date alleged in the accusation," was a harmless error.
[Ed Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3154.]
Rules of evidence, especially addressed to the discretion of the court, are not appropriate subject-matter of instructions to the jury, but those given the jury in this case could not by any possibility be harmful to the plaintiff in error.
[Ed Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1877-1882.]
Where the jury has been properly and fully instructed with reference to the statement of the defendant, it is not necessary, in the absence of a written request, to contrast the statement with the evidence or to give in charge to the jury any theory dependent upon the statement alone. Nor is it error to instruct the jury to take the testimony and the law as given in charge, and apply it to the testimony, and decide whether or not they believe the defendant did commit the offense alleged against him.
[Ed Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 2005.]
The verdict is authorized by the evidence, and, being approved by the trial judge, it will not be set aside for slight errors which could neither have induced nor have contributed to the finding of the jury.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3084.]
Error from City Court of Sylvester; Frank Park, Judge.
Edward Harris was convicted of carrying a concealed pistol and pointing the pistol at another, and he brings error. Affirmed.
Payton & Hay, for plaintiff in error.
J. H. Tipton, Sol., for the State.
Ed. Harris was arraigned in the city court of Sylvester, at the April term, 1907, upon two accusations; one charging him with the offense of carrying a concealed pistol, and the other charging him with the offense of pointing a pistol at another, both cases growing out of the same transaction. They two cases were tried together, and the jury returned a verdict of guilty in both cases. Harris thereupon filed his motion for new trial in both cases; and, his motions being overruled, he brings writs of error to this court.
The plaintiff in error insists that it is not sufficiently shown by the evidence that the transaction testified to by the witness for the state was within the statute of limitations. This is the only assignment of error based upon the evidence; and we think it without merit, for the reason that, while the witness could not be certain that the occurrence to which she was testifying was in the year 1905, still she swore positively that it was on the third Sunday in February of year before last. As the trial was had in 1907, and the accusation was preferred in 1906, the testimony was amply sufficient to show that the offense was committed within two years prior to the accusation. The remaining exceptions are all predicated upon alleged errors in the charge of the court. the fourth, fifth, sixth, seventh, and eight grounds of the motion all relate to the charge of the court on the subject of impeachment. Under repeated decisions of the Supreme Court, it would not have been erroneous for the court to have omitted altogether the charge upon this subject; at least, not such an error as would grant a new trial. We find no error in the instructions as given to the jury upon this subject; and, if a fuller charge was desired, it should have been requested. A brief recapitulation of these grounds convinces us that there was no error in the charge of the court on the subject of impeachment and the credibility of the witnesses that can, under any previous decision, be held to have been harmful to this defendant.
The fourth ground of the motion complains that the court erred in charging the jury that "it is the duty of the jury to make all the witnesses speak the truth, if that can be done, and not impute perjury to any witness." In view of the conflicts in the evidence of the prosecutrix, Margaret Caldwell, and the witness Tison, on the one hand, and J. C. Rogers, on the other, there is no merit in this exception.
In the fifth ground of his motion the defendant assigns the following charge of the court as error: "If there be a conflict between the testimony of witnesses, it is your duty to reconcile the conflicting testimony, and, if this cannot be done, then you are to give credit to those witnesses which, in your opinion from all circumstances of the case are most entitled to credit; the jury being always the judges of the credibility of the witnesses." The plaintiff in error contends that this charge of the court was not authorized by the evidence; and, further, that it put the jury to seeking a conflict, impressed the fact that the defendant had not brought witnesses to court to contradict the state's witnesses, and, further, that the court, having attempted to give the jury the rules for determining the credibility of the witnesses, did not instruct them with that fulness and clearness required by law. In support of the last statement counsel cites the decision in Rouse v. State, 58 S.E. 416, that "reference in the charge to subjects upon which, by law, no charge is necessary without request, requires that the jury be properly instructed on such subjects thus referred to." We think this charge is authorized by the evidence, and that it does not put the jury to seeking a conflict, because one already existed; nor does it, in any sense, contain any intimation, as contended by plaintiff in error, that defendant had not brought witnesses to court to contradict the state's witnesses. In so far as the decision in the Rouse Case, supra, is concerned, the charge is not in conflict with the principle therein announced, because the only subject in which reference is made in the excerpt quoted is to the duty of the jury where there is a conflict in the evidence, and the rule in such event is fully and correctly given by the statement...
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