Harrison v. State, 44613

• Decision Date: 02 December 1969
• Docket Number: No. 44613,No. 3,44613,3
• Citation: 120 Ga.App. 812,172 S.E.2d 328
• Parties: Talmadge HARRISON v. The STATE
• Court: Georgia Court of Appeals

Page 328

172 S.E.2d 328

120 Ga.App. 812

Talmadge HARRISON v. The STATE.

No. 44613.

Court of Appeals of Georgia, Division No. 3.

Dec. 2, 1969.

Rehearing Denied Dec. 16, 1969.

Certiorari Denied Feb. 9, 1970.

Guy B. Scott, Jr., Athens, for appellant.

Thomas W. Ridgway, Dist. Atty., Monroe, Erwin, Epting, Gibson & Chilivis, Gary B. Blasingame, Athens, for appellee.

Syllabus Opinion by the Court

WHITMAN, Judge.

1. The State's motion to dismiss the appeal on the ground that the designation of the judgment appealed from lacks specificity is not meritorious. While the notice designates a judgment of conviction and sentence entered November 9, 1968, and the record reveals that the judgment of conviction and sentence was in fact entered November 8, 1968, which would have required dismissal under the rulings made in Walker v. Walker, 222 Ga. 521, 150 S.E.2d 635, and Bowers v. Gill, 222 Ga. 529, 150 S.E.2d 653, the amendment of 1968 to the Appellate Practice Act (Ga.L.1968, p. 1072 et seq.), now found in Code Ann. § 6-809(d), provides that there shall be no dismissal if it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of these, what judgment was appealed from and what errors are sought to be asserted on appeal, notwithstanding a failure to specify definitely the judgment appealed from. The only judgment in this record is that of conviction and sentence entered November 8, 1968. The judgment is sufficiently described in the notice of appeal to indicate what the appeal is directed to, and it is apparent what the appeal is directed to, and it is apparent that the misstatement of the date is a typographical error.

2. Defendant entered a timely challenge to the array of the jury on the ground that the jurors had been drawn October 23, 1968, after the end of the July term of court, for service beginning during the October term on November 4, 1968. The challenge was denied, and we think properly so. Although Code § 59-701 does provide that petit juries shall be selected at the same time and in the same manner as grand juries, and § 59-203 provides for the selection of grand jurors at the close of each term for service at the ensuing term, this is not exclusive, as will be observed by a reading of § 59-713. The October term of Clarke Superior Court begins on the second Monday in October of each year, which in 1968 was October 14th. It was three weeks later when appellant was placed on trial. Obviously the October term was 'prolonged beyond the week or period for which juries were drawn at the close of the preceding term.' And if for some reason no jurors, or an insufficient number of jurors, had been drawn at the close of the July term, court had convened and the drawing of a jury for service was necessary to expedite the business then before it, in which event 'the judge shall, in the manner prescribed for drawing juries at the close of the regular term, draw such juries as may be necessary.' And see Rawlings v. State, 163 Ga. 406, 136 S.E. 448.

3. Where a handwriting expert, after giving details in making comparison of signatures suspected of having been forged with known exemplars, there was no error in admitting her testimony that 'I have concluded from the examination of the signatures on the questioned check that neither of them were freely written, nor authentic signatures, just by comparing them with themselves,' and further that 'we concluded that Mr. Blount did not write the Bush signature and Mr. James F. Bush did not write the Blount signature.' In so testifying the expert was merely giving her opinion, after having related the facts upon which it was based. It was not subject to the objection that her use of the phrases 'I have concluded' and 'We concluded' was an unwarranted and unlawful invasion of the province of the jury. Bates v. State, 18 Ga.App. 718(3), 90 S.E 481; Borders v. City of Macon, 18 Ga.App. 333(4), 89 S.E. 451; Goza v. Browning, 96 Ga. 421, 23 S.E. 842; Patton v. Bank of LaFayette, 124 Ga. 965, 967, 53 S.E. 664, 5 L.R.A.,N.S., 592; Copeland v. State, 66 Ga.App. 142, 145, 17 S.E.2d 288.

4. While certified copies or exemplifications of public records are generally to be used as evidence in proving their contents because the originals are required by law to be kept in the office where they are to be filed, Code §§ 38-601, 38-602, yet the original record is admissible. Rogers v. Tillman, 72 Ga. 479; Moody v. Board of Commissioners, 29 Ga.App. 21(6), 113 S.E. 103; Myers v. Wright, 158 Ga. 418(3), 123 S.E. 740; and where there is proof that the document offered is the original or admission that it is the original, and particularly where it is offered as a known exemplar for making comparison of handwriting with a suspected forged document, the overruling of an objection to the admission of the document on the ground that the 'foundation has not been laid,' and that 'a public document has to be admitted through the use of a certified copy under seal of the Department, signed by a person authorized by the General Assembly' was not error. The very purpose of the evidence here would generally preclude the use of a certified copy, since these are or may be prepared by use of a typewriter, in which event no comparison of the handwriting would be possible, and if made by reproductive methods such as photocopying the comparison may not be as efficiently and accurately made. A certified copy is generally tendered for proving contents of the document, and for that purpose it can serve as efficiently as the original.

There was admission of the fact that the document was the original of what it purported to be. At the conclusion of the evidence defendant's counsel stipulated that a photostatic copy might be substituted for the original.

5. While defendant's counsel had the handwriting expert on cross-examination and after she had given it as her opinion that the signature on the suspected forged check was written by the defendant, she was asked: 'Then you are not swearing that he copied the entire signature of George C. Blount on the questioned document?' to which she replied: 'I am just saying that in my opinion he very likely did. That is as close as anybody can come in a copied job like this. It is not the free writing of any man; it is a copied job. He is going to revert back to his own form occasionally, the rest of the time he attempts to copy somebody else. And that is as close as you can get. If you are going to exonerate people * * *' At this point counsel moved for a mistrial because of her statement 'If you are going to exonerate people * * *' as being an implication of guilt against the defendant.

The court thereupon admonished the witness to refrain from going beyond testifying as to the facts and as to her opinion based thereon, and instructed the jury that the responsibility of determining guilt or innocence of the defendant was theirs and theirs alone; that while a witness could aid them by the expression of an opinion on matters requiring special skill and knowledge to understand and interpret, she could not perform the function of a juror under the guise of stating an opinion on the ultimate issue which must be determined by the jury and of which they were the sole judges.

We find no error in the overruling of the motion. 'In the refusal to declare a mistrial, the discretion of the trial court will not be disturbed, unless it is made to appear that a mistrial was necessary to preserve the right of fair trial.' Worthy v. State, 184 Ga. 402(1), 191 S.E. 457. And see Scott v. State, 214 Ga. 154(2), 103 S.E.2d 545.

6. In cross examining the handwriting expert defendant's counsel asked whether she had used standards or exemplars other than those already testified about in making comparisons of the defendant's handwriting and in arriving at an opinion concerning it. She answered that she had, and counsel then...