Loomis v. State, 32209.

• Decision Date: 03 December 1948
• Docket Number: No. 32209.,32209.
• Citation: 51 S.E.2d. 33
• Parties: LOOMIS. v. STATE.
• Court: Georgia Court of Appeals

51 S.E.2d. 33

LOOMIS.

v.STATE.

No. 32209.

Court of Appeals of Georgia, Division No. 2.

Dec. 3, 1948.

Rehearing Denied Dec. 15, 1948.

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Syllabus by the Court.

1. In order for an assignment of error based on harm done by the introduction of inadmissible and prejudicial evidence, admitted over objection of the opposite party and left in the record for the consideration of the jury for a period of time during the progress of the trial and then ruled out, to be meritorious, a motion for a mistrial or some motion tending to right the wrong must be made by the party against whom the evidence was introduced and overruled by the court during the progress of the trial. See Richards v. State, 55 Ga.App. 184(4), 189 S.E. 682; De Krasner v. State, 54 Ga. App. 41(12), 187 S.E. 402. This question cannot be raised for the first time in the motion for a new trial.

2. Where the defendant and others charged jointly with him are shown to have conspired to commit the offense of riot, a misdemeanor, and two or more of such others, pursuant to such conspiracy, commit the overt acts constituting the offense, the lack of the immediate presence of the defendant will not prevent him from being a principal in the misdemeanor. See Statham v. State, 84 Ga. 17, 10 S.E. 493.

(a) Any competent evidence revealing motive, knowledge, desire, scheme or plan is admissible for the purpose of showing such a conspiracy. See Barnes v. State, 57 Ga.App. 183, 194 S.E. 839; Fitzgerald v. State, 51 Ga.App. 636, 181 S.E. 186.

(b) Where in the opening of a criminal case before the introduction of evidence, the solicitor general states to the jury in good faith what he expects to prove, and on objection the court instructs the jury that such statement is not evidence and will not influence them; also that "you will finally determine your verdict in this case of guilty or not guilty, based upon the evidence produced to you, and the in-structions from the court that will be given you later, " no error is committed. See Daniels v. State, 58 Ga.App. 599(3), 199 S.E. 572.

(c) The refusal of the trial court to permit a witness for the state to answer questions on cross examination about immaterial matters is not error.

(d) (e) (g) All persons who procure, counsel, command, aid or abet in the commission of a misdemeanor are regarded by law as principal offenders. See Grant v. State, 47 Ga.App. 234, 170 S.E. 394.

(f) Where the applicable principles of the law on a particular subject are fully and correctly given, and in a portion of the charge elsewhere on the subject the judge uses the word or instead of and through a verbal inaccuracy resulting from a slip of the tongue, the same apparently not being misleading, no cause for a new trial arises. See Southern R. Co. v. Mer-ritt, 120 Ga.-409(1), 47 S.E. 908.

3. (a) As a general rule on direct examination in order for the refusal to permit a witness to answer a question to constitute a ground for a new trial, it must appear that a pertinent question was asked, that the court ruled out the answer, that a statement was made to the court at the time showing what the answer would have been and that such testimony was material and would have been beneficial to the complaining party. See Barron v. Barron, 185 Ga. 346, 194 S.E. 905.

(b) It is the duty of the trial court to protect the witness on cross examination from being unfairly dealt with, and at the same time to allow a searching test of his intelligence, memory, accuracy and veracity.

(c) A question propounded by counsel on cross examination is allowable for the purpose of testing the intelligence of the witness, his memory, accuracy and veracity, but must not be argumentive. See Harris v. Central R.R., 78 Ga. 525 (3), 3 S.E. 355. Loomis v. State, Ga. App., 51 S.E.2d 13.

(d) Where the record of a prior conviction of a crime involving moral turpitude has been introduced for the pur pose of impeaching a witness, it is not harmful error for the court to refuse to allow him to testify that he was so convicted.

4. Special ground 7 of the amended motion for a new trial is without merit for the reasons set forth in the corresponding division of the decision.

5. The refusal of the court to permit counsel for defendant to ask a witness for the State about a difficulty between him and the defendant to show ill feeling toward defendant, is not error unless the witness denies such ill feeling. See Sasser v. State, 129 Ga. 541(6), 59 S.E. 255.

6. A challenge of a juror to the poll for favor must name the juror, assign the specific reason for the challenge and request that the juror be put upon the court •as the trior. See Hagans v. State, Ga. App., 48 S.E.2d 700, 701.

7. A prior contradictory statement is admissible for the purpose of impeaching a witness shown to have made it, but is not in itself probative evidence which will tend to prove any fact therein contained. See Progressive Life Ins. Co. v. Archer, 73 Ga.App. 639, 37 S.E.2d 713; Henry v. Hoch, 76 Ga.App. S19, at page 823, 47 S.E.2d 159.

8. It is not incumbent upon the trial judge in the absence of timely and appropriate written request to charge upon the subject of impeachment of witnesses. If he does so at all he should give all law on the subject authorized by the evidence. See Smaha v. George, 195 Ga. 412, 24 S.E.2d 3S5.

9. Evidence of good character may of itself be sufficient to generate a reasonable doubt as to the guilt of the accused and authorize the jury to acquit him regardless of how strong the other evidence of his guilt may be. However, where, as in the instant case, the trial court uses the word "justify" instead of "generate", construed with the remainder of the charge on the subject, same does not constitute reversible error.

10. Where the evidence upon which the State depends for conviction is both direct and circumstantial, it is the better practice to charge on circumstantial evi-dence. However, in the absence of request it is not reversible error for the trial court to fail to so charge. See Middleton v. State, 7 Ga.App. 1 (1), 66 S.E. 22.

11. It is the better practice to give in charge the statute on the defendant's statement and its effect and there leave the matter. See several cases cited under catchword "charge", Code, § 38-415.

12. Special grounds 30 and 31 of the amended motion for a new trial are not meritorious for the reasons set forth in the corresponding division of the decision.

13. Newly discovered evidence is a discretionary ground for a new trial, and a judgment of a trial court overruling a motion for a new trial based thereon will not, in the absence of abuse, be disturbed. It is never a good ground when merely impeaching in its character.

14. Where the verdict is supported by some evidence and is approved by the trial court this Court is without authority to interfere. See many cases cited under catchword, "Approval", Code, § 70-202.

Error from Superior Court, Fulton County; Clark Edwards, Jr., Judge.

Homer L. Loomis, Jr., was convicted of riot and he brings error.

Judgment affirmed.

Plaintiff in error, Homer L. Loomis, Jr., hereinafter referred to as the defendant, was indicted by a Grand Jury of Fulton County for the offense of riot in that he did jointly with James R. Childers and other persons whose names are to the grand jury unknown, make an assault upon Clifford Hines, and did assault, strike and beat the said person, and attempt to commit a violent injury upon the said Clifford Hines accompanying the said assault with violent and tumultuous conduct.

There was some evidence from which the jury trying the case would have been authorized to find facts substantially as follows: that the defendant, Emory C. Burke, James Ralph Childers, Clarence H. Kite and others were members of an organization in the City of Atlanta known as the Columbians; that some of the members of this organization including the' defendant formulated over-all plans whereby they were to take over the governments of the City of Atlanta, then the State of Georgia, the United States, and ultimately get control of the entire universe; that as a part of this plan they would deport Negroes and Jews and those who refused to go would be destroyed; that in connection with the taking over of the City of Atlanta they held meetings, policed certain areas of the City, and undertook to regulate and zone areas wherein only whites would be permitted to live; that in connection with this particular type of work the Columbians' headquarters was called on the 28th day of October, 1946 and information given that a Negro woman was throwing rocks through the windows of a house in a certain section of the City of Atlanta; that some time after dark on that night, several Columbians, including the defendant, went to the scene and the defendant led an investigation of the matter; that Childers, in the presence of the defendant, was given a pistol by another Columbian, Ira Jett, who kept quite a number of firearms and quite a supply of ammunition in his home, and the defendant armed Clarence H. Kite with a blackjack; they were left at the scene by the defendant together with others; that the defendant instructed them that if they saw any Negroes about the streets of this part of the City to beat them up and hold them until he returned; that a short time after he left the scene a young Negro man, Clifford Hines, appeared and some one of the party of Columbians inquired, "Is that a Negro?" whereupon the Negro answered, "Yes, boss, I'm on my way home, " after which the party rushed upon the Negro, caught him, knocked him down, beat him about his head with the blackjack, stifled his screams, dragged him back to the street, hailed a passing motorist, loaded him in the car, and then Childers took the pistol, pointed it at his head and informed him that if he cried out he would fill him full of lead; that at this point a policeman came upon the scene and...