Miles v. State

• Decision Date: 23 September 1959
• Docket Number: No. 2,No. 37862,37862,2
• Citation: Miles v. State, 112 S.E.2d 237, 100 Ga.App. 614 (Ga. App. 1959)
• Parties: Byron E. MILES v. STATE
• Court: Georgia Court of Appeals

Page 237

112 S.E.2d 237

100 Ga.App. 614

Byron E. MILES v. STATE.

No. 37862.

Court of Appeals of Georgia, Division No. 2.

Sept. 23, 1959.

Rehearing Denied Nov. 4, 1959.

Syllabus by the Court.

1. Testimony of acts immediately preceding an assault and battery and tending to show motive on the part of the defendant is admissible and not subject to objection on the ground that it is merely an opinion of the witness, where the facts testified to are such as would naturally be within the knowledge of the witness, such as whether or not certain subjects were discussed between her and the defendant.

2. A witness, like a party to an action, may not be forced to divulge the advice of her professional advisers, nor her consultation with them, in matters relating to her own and not the party's case.

3. The testimony of the prosecuting witness, accepted by the court hearing the case without the intervention of the jury as true, established that the defendant committed an assault and battery upon her. Accordingly, the general grounds of the petition for certiorari are without merit.

The defendant Byron Miles was tried under an accusation sworn to by the prosecutrix, an elderly woman who had previously instituted proceedings to adopt him, for the offense of assault and battery in the Criminal Court of Fulton County. The defendant was convicted by a judge of the Criminal Court sitting without a jury and his application for certiorari to the Superior Court of Fulton County based on the general grounds and two special grounds was overruled by a judge of that court, upon which judgment error is here assigned.

E. H. Stanford, Marvin O'Neal, Jr., Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., John I. Kelley, Sol., Hinson McAuliffe, Eugene L. Tiller, Atlanta, for defendant in error.

TOWNSEND, Judge.

1. In his petition for certiorari the defendant assigns error because the prosecutrix, Margaret Hunt Miles, testified on direct examination: 'I don't think there had been any discussion between me and Byron concerning money, that he was dissatisfied with the amount I gave him.' Counsel for the State then asked: 'Could that have been the reason he beat you in October, 1958?' The witness replied, 'No, sir', and counsel for the defendant objected to the latter question and answer on the ground that it constituted an opinion. Opinions and inferences of witnesses not based on facts are of course inadmissible. Howell v. Howell, 59 Ga. 145(5); Marshall v. Pierce, 136 Ga. 543(3), 71 S.E. 893; Smith v. State, 14 Ga.App. 17(1), 80 S.E. 22. The witness testified that she could not recall what brought on the fuss resulting in the alleged beating of her by the defendant 'but he came around to my room from his room and for some reason he got mad and began slapping me in the face, knocked me clear down on the floor and kicked me in the back.' The State properly sought for a motive for an otherwise inexplicable assault of a 32 year old man upon an 81 year old woman who apparently had stood in the relation of a mother to him. Had the witness known the motive, she would have been competent to testify to it. Daniel v. State, 59 Ga.App. 884, 2 S.E.2d 519. Just before this question she had testified: 'I don't know what the provision was for his making this attack on me, unless he wanted me to give him more money. I had allowed him to have a joint bank account with me so he wouldn't be embarrassed over asking me for money.' The State's case would of course have been strengthened by showing a motive for the attack, which was denied by the defendant, and would have rendered the fact of such attack more worthy of credence. The witness' response, was in no wise harmful to the defendant, even if considered merely as the witness' opinion, based on her lack of knowledge of any discussions of financial transactions or quarrels between herself and the defendant, a fact which, if it existed, she would presumptively have been aware of. This ground is without merit.

2. Error is also assigned because the same witness, on cross-examination, was asked: 'Haven't Mr. Guy Smith [an attorney] and the members of your family told you they could force him to make a settlement with you for you to get out of the adoption if...