Jones v. State

• Decision Date: 04 September 1947
• Docket Number: No. 31656.,31656.
• Citation: 44 S.E.2d 174
• Parties: JONES. v. STATE.
• Court: Georgia Court of Appeals

44 S.E.2d 174

JONES.

v.STATE.

No. 31656.

Court of Appeals of Georgia,

Division No. 2.

Sept. 4, 1947.

Syllabus by the Court.

1. It is a well settled principle of law in this State that the juries are the proper judges of the weight and sufficiency of testimony and of the credibility of witnesses. This Court will not disturb the verdict of the jury where there is evidence to support its findings. Stricklin & Co. v. Crawley, 1 Ga.App. 139, 58 S.E. 215; Daughtry v. Savannah & S. R. Co., 1 Ga.App. 393, 58 S.E. 230; Charles v. Brooker, 1 Ga.App. 219, 58 S.E 218; Unity Cotton Mills v. Hasty & Strickland, 19 Ga.App. 588, 590, 91 S.E. 915.

2. When the rule for the sequestration of witnesses under section 38-1703 of the Code has been invoked it is ordinarily in the discretion of the court to allow a party's witness to remain in court and assist in the trial, he being the first witness examined for the State. Talley v. State, 2 Ga.App. 395(1), 58 S.E. 667; City Electric R. Co. v. Smith, 121 Ga-663(1), 49 S.E. 724.

3. It is error to permit a witness over timely objection to testify to a conclusion, the facts stated by such witness from which he drew such inference, not constituting ample evidence to support the same, and thetestimony as to the conclusion being prejudicial. Code § 38-1708; Central of Georgia R. Co. v. Butler Marble & Granite Co., 8 Ga.App. 1, 2(8), 68 S.E. 775; Cornelia Planing Mill Co. v. Wilcox, 129 Ga. 522(1), 59 S.E. 223-

4. When a defendant is charged with the violation of a penal statute containing disjunctively several ways or methods the crime may be committed, proof of any one of which is sufficient to constitute the crime, the indictment, in order to be good as against a special demurrer, must charge such ways or methods conjunctively if it charges more than one of them. Cody v. State, 118 Ga. 784, 45 S.E. 622; Statham v. State, 50 Ga.App. 165(2), 167, 168, 177 S.E. 522.

5. Accordingly, on the trial of a defendant under an indictment so charging, it is not incumbent upon the state to prove all of such separate ways or methods alleged in the indictment, but the State makes a prima facie case upon its establishment by proof of any one of them.

Error from Superior Court, Crisp County; O. T. Gower, Judge.

Arnie Lee Jones was convicted of arson, and he brings error.

Reversed.

Arnie Lee Jones, hereinafter referred to as defendant, was indicted by the grand jury of Crisp County at the January Term, 1947, of the Superior Court of said county, for the offense of arson, for that said Arnie Lee Jones, on the 5th day of November, in the year 1946, in the county aforesaid, did then and there, unlawfully and with force and arms, wilfully, feloniously, and maliciously, and with intention to defraud, set fire, and burn, and cause to be burned a certain unoccupied dwelling house, the property of Mrs R. S. Sheppard and situated on her farm including land lot number 146 in the 11th district of Crisp County, Georgia. On the 12th day of February, 1947, defendant entered his plea of not guilty to said charge and was placed on trial.

R. E. Lee was the first witness for the State to testify. He swore that Mrs. R. S Sheppard was his mother-in-law; that she operated said farms in Crisp County and that he rented a farm from her paying standing rent; that said farm, including lot 146 in the 11th district of said county, is under his supervision; that on November 5th an unoccupied house on said farm was completely destroyed by fire. This house had some furniture in it. It burned about midnight. He also testified that he knew Arnie Lee Jones who lived on a farm adjoining, several years ago; Jones had worked with witness at times, but was not working for him at the time the house was burned; that he and defendant had had some trouble; it was about some stumps witness had dug and pulled and had brought to his house for kindling; he missed them and upon asking defendant about them, defendant denied any knowledge of stumps; witness saw the stumps at defendant's woodpile and demanded their return. Defendant returned one stump. He testified there was bad feeling existing towards him on the part of the defendant. The witness further testified upon cross examination, that he thought this fire and burning by the defendant was over one stump. Ella Mae Gray testified, in substance, that defendant came to her house a short time before the fire occurred and asked for some matches and splinters and stated that he was going to burn this house, and that he immediately left her house and went straight to the house of Mr. Lee, which was only a short distance from where she lived, and that she saw him set the house on fire. The witness also testified that she saw Arnie Lee Jones after the fire and that he told her he had burned the house and was mad with Mr. Lee, and that if she said anything about it he would kill her. Leroy Gray, husband of Ella Mae Gray, also testified that Arnie Lee Jones came to his house shortly before the fire and asked for some splinters and a match and that about ten minutes after he left his house the house of Mrs. Sheppard was burning. He stated that he also had a conversation with Arnie Lee Jones the following day and that Arnie Lee had told him that if he said anything about it that he would kill him.

The Sheriff of Crisp County testified that he arrested Arnie Lee Jones and that hewas hiding in a closet in his home at the time of the arrest. There was testimony that the house was worth approximately $700 and was uninsured. The defendant made a brief statement in which he said he knew nothing about the house being set afire and that he did not have anything against Mr. Lee and that he did not know anything about the fire until the next morning. His mother and brother testified that on the night of the fire Arnie Lee Jones was at his home.

The jury returned a verdict of guilty and fixed the defendant's sentence at not less than 2 or more than 4 years in the penitentiary and the defendant was accordingly sentenced by the court The defendant filed a motion for new trial on the general ground which was later amended by adding 4 special grounds After hearing, the trial judge entered judgment, overruling the defendant's motion for new trial as amended. Error is assigned on this judgment.

George M. Mixon and Graydon D. Red-dick, both of Cordele, for plaintiff in error.

Harvey L. Jay, Sol. Gen., of Fitzgerald, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

1. Special ground 3 of the amended motion for new trial being an amplification of the general grounds, the same are considered together While the testimony of Ella Mae Gray contains many discrepancies that would have authorized the jury to have disregarded it entirely, yet they were authorized, if they saw fit to do so, to believe her. "The jury are the proper judges of the weight and sufficiency of testimony and of the credibility of witnesses, and this court will not disturb the verdict of a jury where there is evidence to support its findings. * * * Stricklin & Co. v. Crawley, 1 Ga.App. 139, 58 S.E. 215; Charles v. Brooker, 1 Ga.App. 219, 58 S.E. 218; Daugh-try v. Savannah & S. R. [Co.], 1 Ga.App. 393, 58 S.E. 230." "Unity Cotton Mills v. Hasty & Strickland, 19 Ga.App. 588, 590, 91 S.E. 915, 916. The evidence authorized the verdict.

2. Special ground 1 of the amended motion for a new trial complains of the action of the court in the course of the trial when the witnesses were sworn and the rule for the sequestration invoked under Code, § 38-1703, and the court permitted, over objection of defendant's counsel, R. E. Lee, a witness for the State, to remain in court, it being contended that the presence of said witness, a white man and in charge of the property on which the arson is alleged to have been committed, would intimidate the colored witnesses for the State who lived on said property. This court can see where,...