Hodges v. State
| Decision Date | 16 July 1958 |
| Docket Number | No. 2,No. 37233,37233,2 |
| Citation | 104 S.E.2d 704,98 Ga.App. 97 |
| Parties | Margaret J. HODGES v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Neither the accusation nor any of the separate counts thereof was subject to the demurrers attacking them on the ground that they failed to describe the offenses charged with requisite particularity, or that the several counts were incomplete.
(a) The offense of lottery not being dependent on place, it was sufficient for the accusation to allege that it occurred in Fulton County, Georgia.
(b) The allegations of the first three counts of the accusation which charged offenses committed more than two years prior to the date of the accusation and which alleged a prior accusation, and that it was subsequently nol prossed, were sufficient as against the demurrers, plea in bar and motion to quash which attacked these counts as being barred by the statute of limitations as being too remote and as placing the defendant's character in issue.
(c) The court did not err in admitting evidence in proof of the offenses charged in counts 1, 2 and 3, which was objected to on grounds substantially the same as urged in the demurrers, plea in bar and motion to quash those counts.
(d) The portion of the charge excepted to was in substantial conformity with the rulings made in this division of the opinion and the court did not err in so instructing the jury.
(e) The court did not err in failing to instruct the jury that, where an accusation has been nol prossed and brought again within six months, the new accusation must set forth the reasons why the original was nol prossed.
2. The evidence admitted over the defendant's objection as complained of in paragraph 11 of the petition for certiorari was not apparently harmful to the defendant and its admission was, therefor, not error.
3. Where the same evidence had been elicited by counsel for the defendant on cross-examination, the trial court did not err in permitting a witness for the State to testify on re-direct examination that he had served time in the Federal penitentiary on account of charges made against him in connection with one of the instances for which the defendant was on trial.
4. The burden was on the State to prove that the original accusations had been nol prossed and the introduction in evidence of the original documents was a permissible means of accomplishing this proof.
5. Where the court ruled out improper evidence and promptly instructed the jury that it was not to be considered, it was not error, therefore to refuse to grant a mistrial on account thereof.
6. The admission of the evidence objected to, as complained of in paragraphs 20 and 21, was not erroneous for any of the reasons assigned.
7. The trial court did not err in refusing to require that a witness for the State name an informer upon whose information he testified he had acted.
8. Where physical evidence tending to prove the commission of the crime charged was observed in the defendant's possession by a police officer conducting a search under a warrant, the fact that the evidence was taken from the defendant forcibly when the defendant was in the act of destroying it, did not render such evidence inadmissible.
9. The evidence authorized the verdict.
James R. Venable, Atlanta, for plaintiff in error.
Frank S. French, Sol. Gen., Paul Webb, Sol. Gen., John I. Kelley, Sol., Henson McAuliffe, B. B. Zellars, Eugene L. Tiller, Atlanta, for defendant in error.
Margaret Josie Hodges was tried in the Criminal Court of Fulton County on six counts of a seven-count accusation charging her with lottery. The jury returned a verdict of guilty on five of the counts. The defendant's petition for certiorari was sanctioned by a judge of the superior court and was thereafter overruled and denied on each and every ground thereof. The exception here is to that judgment.
The accusation was based on an affidavit made by one W. M. Cox, and charged the defendant with having committed the offense of lottery on June 30, 1952, July 1, 1952, July 2, 1952, February 7, 1956, February 14, 1956 (at 3893 Powers Ferry Road in Fulton County), February 14, 1956 (at 5400 Peachtree-Dunwoody Road in Fulton County, withdrawn at conclusion of the evidence), and on October 29, 1957. With respect to the first three counts of the accusation it was alleged therein that those charges were the same charges as those originally filed in an accusation on September 15, 1952, and which was subsequently nol prossed on November 12, 1957. The present accusation was returnable to the November term, 1957, of the Criminal Court of Fulton County. To this accusation the defendant filed demurrers, a plea in bar and a motion to quash. The first three assignments of error in the petition for certiorari complain of the order of the trial judge overruling the demurrers, the plea and the motion. Inasmuch as these orders and the exceptions thereto raise substantially the same questions, they will be considered together.
1. Each count of the accusation charged that the defendant in the county aforesaid (Fulton County), on the date therein set out, 'did keep, maintain, and operate a lottery, known as the number game, for the hazarding of money.' The wording of these accusations was substantially in conformity with the wording of the statute (Code, § 26-6502) and sufficiently described the offense and the essential elements thereof. Code, § 27-701. Hodges v. State, 55 Ga.App. 670(1), 191 S.E. 182; Howard v. State, 89 Ga.App. 158(1), 78 S.E.2d 876. Each count of the accusation was complete within itself, plainly described the offense and all the necessary and essential elements thereof and was sufficient to inform the defendant and the jury of the charges against her. Each count accurately and sufficiently set out the place and the time of the offense. The criminality of the offense charged in this accusation not being dependent upon place, it was sufficient to charge that it was committed in Fulton County. Flanders v. State, Ga.App., 104 S.E.2d 538, and citations.
With respect to the first three counts of the accusation, each alleged that the charge embodied therein had originally been filed in the form of an accusation in the Criminal Court of Fulton County on September 15, 1952, and that such original accusation had subsequently been nol prossed on November 12, 1957. These allegations were sufficient to place these counts of the accusation within the purview of Code, § 27-601, par. 4, and neither of these counts nor the accusation as a whole was subject to the grounds of demurrer, nor to the plea in bar, nor to the motion to quash, contending that prosecution for the crimes charged therein was barred by the statute of limitations.
The offensed charged in each count of the accusation were identically the same except for the dates alleged. Counts 1, 2 and 3 having alleged facts which placed the offenses therein within the provisions of Code, § 27-601, par. 4, the mere fact that some five years intervened between the dates of the offenses charged in the first three counts and the offense charged in the last counts did not render the accusation subject to demurrer or motion to quash on the ground that in so charging the defendant the prosecutor evidenced a purpose to place the defendant's character in issue. Neither did this fact violate the due-process clause of the Federal Constitution (the Fourteenth Amendment), nor the provisions of the State Constitution guaranteeing to persons charged of crimes a public and fair trial. Neither the ground of the demurrer nor the ground of the motion to quash alleging that it did not appear that the offenses charged in counts 1, 2 and 3 were identical to the corresponding counts of the old indictment was meritorious. It follows that the judge of the superior court did not err in overruling the grounds of the petition for certiorari complaining of the order of the trial judge overruling the demurrers, the plea in bar and the motion to quash.
Paragraphs 7, 8, 9, 10, 12, 14, 15, 17, 19 and 24 of the petition for certiorari assigned error on rulings of the court admitting evidence relating to the offenses charged in counts 1, 2, and 3, and on the refusal of the court to strike evidence relating to those offenses and on the refusal of the court to grant a directed verdict as to those offenses on the grounds that those offenses were barred by the statute of limitations, were too remote and not connected with the offenses charged in the other counts of the accusation, and because of their remoteness placed the defendant's character in issue. In view of the ruling made in the foregoing division, none of these assignments of error was meritorious.
After the jury had retired, they returned to the courtroom and requested a recharge on the question of the statute of limitations. After some colloquy between the court and a juror, the court instructed the jury as follows: In paragraph 26 of the petition for certiorari, error is assigned on this portion of the...
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