Lovinger v. State, (No. 19305.)

• Decision Date: 15 January 1929
• Docket Number: (No. 19305.)
• Citation: 146 S.E. 346,39 Ga.App. 116
• Parties: LOVINGER. v. STATE.
• Court: Georgia Court of Appeals

39 Ga.App. 116

146 S.E. 346

LOVINGER.

v.STATE.

(No. 19305.)

Court of Appeals of Georgia, Division No. 1.

Jan. 15, 1929.

(Syllabus by the Court.)

The evidence and the defendant's statement warranted the court's charge on the law governing admissions in criminal cases.

Error from Superior Court, Fulton County; E. E. Pomeroy, Judge.

Bailey Lovinger was convicted of larceny of an automobile, with recommendation that he be punished as for misdemeanor, and he brings error. Reversed.

Branch & Howard and E. L. Tiller, all of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., J. W. Le Craw, and E. A. Stephens, all of Atlanta, for the State.

LUKE, J. The indictment in this case charged Bailey Lovinger, Mrs. Bailey Lovinger, E. W. Mitchell, and Albert Smith with larceny of an automobile belonging to Bennie Clein. The jury trying Bailey Lovinger found him guilty, and fixed his sentence at from one to five years, with a recommendation that he be punished as for a misdemeanor. The motion for a new trial was overruled, and Lovinger excepted.

A case was made out for the state by the evidence of Clein and others, the automobile having been taken from Clein's place of business in Atlanta, stripped of certain of its parts, and burned. The defendant admitted that he was the moving spirit in taking the automobile, but introduced evidence to sustain his statement that there was no lar ceny, for the reason that Clein hired him to destroy the car in order that he might collect the insurance on it. Clein denied entering into any such scheme. There was ample evidence to sustain the defense, had the jury seen fit to believe it. They accepted Clein's version of the matter, however, and this court is without power to take from the jury their legal prerogative of passing upon the credibility of witnesses and conflicts in the evidence. The judge did not err in overruling the general grounds of the motion for. a new trial.

Special grounds 1, 2, and 3 are controlled by the same principles of law. To avoid repetition, and at the same time make ourselves clear, we shall discuss in detail only the second special ground. It is that the court, erred in allowing state's counsel to ask the defendant's witness E. W. Mitchell if he had not been arrested and convicted in Fulton county, along with one Cobbler; and in allowing the witness to answer, "I have been arrested in this county, and have been convicted in this county last year, —not along with Cobbler, — by myself;" the testimony being objected to upon the ground that the record of the arrest and conviction of the witness would be the best evidence. This witness previously testified that Clein, the owner of the automobile, had entered into an agreement with the defendant and the witness to destroy the car in order to collect the insurance on it.

In Wheeler v. State, 4 Ga. App. 325 (2), 61 S. E. 409, this language was used: "Only conviction of crime involving moral turpitude serves as a basis for impeaching, or can be held to be a ground for discrediting, the testimony of a witness who has been thus convicted; and the proper method of proving that a witness has been convicted of crime is by the record of his trial and conviction." In Howard v. State, 144 Ga. 169 (2, 2-a), 86 S. E. 540, this language appears: "Where it is sought to discredit a witness on account of his previous conviction of crime, the judgment of the court in which he was convicted is the highest evidence of the fact; and it is error to permit a witness, over objection, to testify as to his conviction for certain offenses, (a) But a witness cannot be impeached by showing his conviction for a misdemeanor, it not appearing that the offense was one involving moral turpitude." In Swain v. State, 151 Ga. 375 (4, 4-a), 107 S. E. 40, Justice Atkinson, speaking for the court, said: " 'The best evidence which exists of the fact sought to be proved must be produced, unless its absence is satisfactorily accounted for.' Code, § 5748. Where it is material to prove that a witness has been convicted of an offense, the best evidence of that fact is the record of the conviction. Johnson v. State, 48 Ga. 116 (3); Hunter v. State, 133 Ga. 78 (8), 79 (65 S. E. 154); Beach v. State, 138 Ga. 265 (75 S. E. 139); Howard v. State, 144 Ga. 169 (2), 171 (86 S. E. 540). (a) Accordingly, where a witness for the defense, on cross-examination, testified 'that he had been convicted of cow-stealing at the August term, ' it was erroneous to admit such testimony over the objection that 'there is higher and better evidence...