Lance v. State
| Decision Date | 15 February 1928 |
| Docket Number | 6230. |
| Citation | 142 S.E. 105,166 Ga. 15 |
| Parties | LANCE v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The court erred in admitting the testimony complained of in the sixth and seventh grounds of the motion for new trial. This evidence tended to prove acts upon the part of the alleged joint conspirators to commit the crime with which this defendant was charged, occurring after the purpose of the conspiracy had been accomplished and the conspiracy had ended.
Under the ruling just stated, the court erred in admitting evidence similar to that already held to be objectionable, which related to acts or tended to prove acts of the alleged joint conspirators and after the conclusion of the enterprise which formed the object of the conspiracy. This covers the assignments of error in grounds 8, 9, and 10 of the motion for new trial.
The court did not err in allowing a witness for the state to testify, over objection, that the testimony was irrelevant as follows: "That he had seen Jack Lance, Whitey Jones Smitty Batchelor, Abe Nissenbaum (alias Sparkplug), and a man named George O. Young in company with this defendant, Jack Lance, very often prior to the murder of Bert Donaldson; that he had seen them together around the Henry Grady Hotel pretty often, and up and down the streets." All the persons named in this testimony, except one, were jointly indicted with Lance for the murder of Donaldson.
Evidence to show that a woman by the name of Yvonne Jones occupied a room at the Henry Grady Hotel during the time when this defendant was occupying a room at the same hotel, just prior to the alleged murder of Bert Donaldson, was not objectionable on the ground that it was irrelevant, in view of other evidence in the case.
In view of other evidence, the testimony as to a woman, with whom the jury might have found that Lance was closely associated about the time of the commission of the crime with which he was charged, took a room at the same hotel at which Lance was stopping the night before the murder, was admissible and not open to the objection that it was irrelevant and immaterial.
The court did not err in admitting the evidence objected to upon the ground that it was irrelevant, which appears in the fourteenth and fifteenth grounds of the motion for new trial and which related to the sayings and doings of parties whose participation in the conspiracy was a question for the jury under the evidence.
Statements made by the deceased a few days before he was killed, as to getting information in reference to another person not connected with the crime under investigation in this case, as to an offense which such third person had committed, were irrelevant and immaterial, and should have been excluded upon timely objection.
Where the court, in admitting testimony objected to by the defendant, stated that the evidence was open to the objection made, that is, of irrelevancy, unless the connection of the defendant with the conversation to which the testimony related should be shown, but that the testimony would be admitted "for the present," if no evidence connecting the defendant with the conversation was subsequently introduced, counsel for the accused should have called the court's attention to the tentative or conditional ruling and have requested the court to complete the ruling or to rule out the testimony, and having failed to do this, or failed to remind the court of the ruling in any way, they could not take advantage of it as a ground of a motion for a new trial.
In ground 19 of the motion for new trial error is assigned upon the admission in evidence, over the objection that it was irrelevant, of testimony by one Easterling, a witness for the state, as follows: Question by the solicitor general: The witness Easterling had just previously testified as follows: While because of its immateriality the admission of this evidence over objection might not be sufficient ground for the granting of a new trial, nevertheless it was irrelevant, and, if offered upon the next trial and objected to upon the same ground, it should be excluded.
The court did not err in admitting in evidence the testimony of a witness for the state, set forth in grounds 20, 21, 22, and 24 of the motion for new trial.
The evidence of the absence from home of the mother of the defendant in this case, at or about the time of the commission of the crime for which the defendant was on trial, was irrelevant and should have been excluded upon objection based upon that ground; there being nothing to show that the mother of the defendant was cognizant of the alleged conspiracy or had any connection with it, or that her departure from home was in furtherance of the conspiracy or had any relation to it.
While a witness cannot be corroborated as to her testimony tending to show the facts of a homicide by evidence of her having previously related the same facts to other parties, nevertheless, if there be an effort to show that she kept silent as to the occurrence for a long time, it is competent to prove that she did tell other parties about the matter, though what statements she made in reference to it would not be admissible.
The court admitted, over objection, a card identified by a witness for the state as being a record of a telephone call made from Chattanooga, Tenn., on the night of July 28, 1926, by a person by the name of Hill to telephone No. Ivy 1053, Atlanta, and a similar card containing the record of a telephone call from a person by the name of Summers, in Atlanta, calling Hemlock 4840, to a person by the name of Hall in Chattanooga. Each of these cards had notations showing time of filing, places from which and to which sent, the operator, the number of the telephone called, etc. The court also admitted in evidence the registry sheet of a hotel in Chattanooga, Tenn., of the date of July 25, 1926, whereon appeared the names of G. C. Akin and R. H. Hall, St. Louis, and the rooms to which they were assigned; also the registry sheet of the Georgian Terrace Hotel, Atlanta, Ga., of date July 26, 1926, whereon appeared the name of J. H. Summers, Detroit, assigned to room 313, and the names of R. V. Rhodes, Richmond, Va., and H. H. Hall, Richmond, each assigned to room 922. Objections, on the ground of irrelevancy, were made to each of these telephone records and to each of the registry sheets. Held, that, inasmuch as the name of J. H. Summers appeared upon the registry sheet of the Georgian Terrace Hotel, and because of the location of the room to which he was assigned with reference to the room in which the murder of Donaldson was committed, and other facts appearing in the record, it was not error to admit the registry sheet of the Georgian Terrace Hotel; but the cards showing the record of telephone calls and the registry sheet of the Patten Hotel in Chattanooga were not relevant under any of the evidence in the case.
The court did not err in admitting in evidence an indictment in Fulton superior court, returned on August 21, 1925, against Jack Lance and two other persons,, charging them with the offense of larceny after trust, there being some evidence to show that Bert Donaldson had to a certain extent been instrumental in procuring this indictment, inasmuch as the court instructed the jury that the indictment was admitted merely for the purpose of showing motive, and that the jury "would not be interested in nor concerned with any other question that might be illustrated by the indictment."
Inasmuch as the judgment refusing a new trial is reversed upon other grounds, it is unnecessary to pass upon the question as to whether or not the court erred in overruling the motion for a mistrial. Nor is it necessary to pass upon the question of the disqualification of a juror who, as was insisted by movant, was disqualified because of the existence of certain facts shown in the record, as it is not probable that the same question and situation will arise upon the next trial. And for the same reason it is unnecessary to pass upon the ground of the motion based upon newly discovered evidence, as this question cannot arise at the next hearing.
Error from Superior Court, Fulton County; G. H. Howard, Judge.
Jack Lance was convicted of murder, and he brings error. Reversed.
Branch & Howard, John F. Echols, Eugene Dickey, Aldine & Hewitt W. Chambers, and W. Paul Carpenter, all of Atlanta, for plaintiff in error.
John A. Boykin, Sol. Gen., of Atlanta, and Geo. M. Napier, Atty. Gen., T. R. Gress, Asst. Atty. Gen., and E. A. Stephens and J. W. Le Craw, all of Atlanta, for the State.
Jack Lance was convicted of murder, under an indictment charging him and others jointly with the murder of Bert Donaldson. In accordance with the conviction, Lance, was sentenced to be electrocuted. He filed his motion for...
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