Moyers v. State

• Decision Date: 17 October 1939
• Docket Number: 27665.
• Parties: MOYERS v. STATE.
• Court: Georgia Court of Appeals

6 S.E.2d 438

61 Ga.App. 324

MOYERS v. STATE.

No. 27665.

Court of Appeals of Georgia, Division No. 1.

October 17, 1939

Rehearing Denied Dec. 14, 1939.

Syllabus by the Court. [Copyrighted Material Omitted]

George G. Finch and Reuben A. Garland, both of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., J. Walter Le Craw, and James A. Branch all of Atlanta, for defendant in error.

MacINTYRE Judge.

W. T. Moyers was convicted of robbery, filed a motion for new trial which was overruled and he excepted.

1. Special ground 1 assigns error on the ruling of the court sustaining an objection to the question of counsel for defendant on cross-examination of Mr. Glenn in which Mr. Glenn was asked, "If Moyers [defendant] had demanded a half-million dollars, would you have gone down and fixed that up and brought it to him?" The contention is that the ruling of the court abridged the defendant's right to a thorough and sifting cross-examination; that "the question was material as affecting the credibility of the witness Glenn, and for the purpose of allowing the jury to determine whether the transaction was as contended for by the defendant, that is, that the witness Woodruff owed the defendant $30,000, and that the defendant [witness?] Glenn procured said sum only because he was instructed to do so by the witness Woodruff, and that had a larger amount been demanded by the defendant that the witness Glenn would have delivered said sum." This court, in Clackum v. State, 55 Ga.App. 44, 51, 189 S.E. 397, 402, said: "While it is recognized that it is the substantial right of one accused of crime to a thorough and sifting cross-examination of every witness that appears against him, and that this right should not be abridged, yet this right is not violated by the judge in ruling out a question on cross-examination, hypothetical in nature, assuming facts not in evidence, which would amount to aimless, useless, and purposeless examination, and would prove a waste of time of the court." See also Durham v. State, 138 Ga. 817, 76 S.E. 351; Styles v. State, 176 Ga. 637 (3), 168 S.E. 887; Granison v. State, 49 Ga.App. 216, 174 S.E. 636; Lewis v. State, 90 Ga. 95, 15 S.E. 697; 70 C.J. 638, § 809. The court did not err in sustaining the objection. The question was hypothetical in nature and assumed a fact not in evidence. The evidence here was of the theft of $30,000, not a half million.

2. Special ground 2 complains that the defendant's right to a thorough searching and sifting cross-examination of the State's witness Black was abridged by the court in failing and refusing to permit counsel for the defendant to interrogate said witness as follows: "Do you know whether any demand was made on any insurance company for any alleged losses the bank is alleged to have sustained by reason of a robbery?" Further, that it was "highly relevant and necessary from the defendant's standpoint to prove his innocence, it being contended by the defendant that the money was obtained by him in full settlement of the claim he had against the witness, Woodruff, and the failure of the Trust Company of Georgia or of Glenn [its president] to have made demand on the insurance company for reimbursement is a circumstance which the jury might conclude corroborated the statement of the defendant."

Where an officer or agent of a bank is robbed of money in his actual lawful possession, as distinguished from mere custody, although the legal title is in the bank, the ownership may be laid in either the person having such actual lawful possession or in the bank, even though the bank had the legal title and the constructive possession. Henley v. State, 59 Ga.App. 595, 600, 2 S.E.2d 139. Where the ownership of the money alleged in the indictment to have been taken in a robbery is in the person or agent having the actual legal possession, it is immaterial in the trial of the case whether the bank (even though it had the legal title) had any insurance against robbery or not, and even if the insured and the insurance company had already reimbursed the bank it would not change the character of the transaction, for, if the transaction amounted to robbery, it would still be robbery, even though the bank had been subsequently reimbursed by the insurance company. O'Neal v. State, 10 Ga.App. 474, 73 S.E. 696. On the other hand, if this question had been allowed by the court it would likely have opened up another issue as to whether the bondsman of the bank was liable, or whether, when Glenn obtained the money from the bank for Woodruff, the legal title had not passed out of the bank and into Woodruff and thus have plunged the court into a collateral issue of the liability of the bonding company which was unnecessary in order to fairly determine the material issues in the case. We therefore do not think that the court improperly abridged the right of the defendant to a thorough and sifting cross-examination of a State's witness in refusing to allow him, for the first time, on cross-examination, to go into the question of whether a bond had been given to cover losses in the event of a robbery, or if the bank had such a bond, whether Glenn, the president of the bank, had made a demand for reimbursement. Applying this "rule of relevancy" to the cross-examination, we think the ground is without merit. Granison v. State, 49 Ga.App. 216, 218, 174 S.E. 636.

3. After Mr. Finch, attorney for the defendant, had insisted upon asking the State's witness Black, "Do you know whether any demand was made on any insurance company for any alleged losses the bank is alleged to have sustained by reason of a robbery?" which we decided in the preceding division of this opinion was irrelevant, the following colloquy took place:

"Mr. Finch: No. I say it is a circumstance the jury should consider.

"The Court: I don't think so. I think it is irrelevant.

"Mr. W. T. Moyers [defendant]: Your Honor, the bank would not. ***

"The Court: I can not hear from you, Mr. Moyers."

The defendant complains in special ground three that this deprived the defendant of his constitutional right to defend himself in that, after the court had sustained an objection to the question asked the witness Black on cross-examination as to whether or not any demand was made on the insurance company, it declined to hear from him (the defendant) on the objection. Code, § 2-104, Const. art. 1, § 1, par. 4, declares: "No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State, in person, by attorney, or both." See also Gatlin v. State, 17 Ga.App. 406, 87 S.E. 151; Jones v. State, 57 Ga.App. 344, 345, 195 S.E. 316. "In all cases in which more than one attorney is retained on either side, the examination and cross-examination shall be conducted by one of the counsel only; and at the opening of the case both parties shall state to the court to which attorney the examination and cross-examination of witnesses is confined." Code, §§ 24-3359, 24-3388. In the instant case, Mr. Finch was leading counsel and was conducting the cross-examination. Confusion and perplexity would necessarily arise if a cause were to be conducted at the same time both by counsel and by the party himself. If the defendant has counsel to conduct his cause, he may suggest any question to them which he considers fit to be put; or if he takes the conduct of it upon himself, he may have the benefit of their private suggestions upon matters of fact, and as soon as any point of law arises, they shall be readily heard upon it. The trial court has the undoubted right to hold all trials to their proper and legitimate channels. It is not only his legal right, but his duty as well, to see that the court's business proceeds in an orderly and decorous manner. We are of the opinion that, as the defendant was represented by counsel (and we might add, able and experienced counsel), the trial court did not abuse its discretion in refusing to allow the defendant to also conduct the cross-examination of the witness. See Roberts v. State, 14 Ga. 18 (2); Rex v. White, 170 English Rpts. (Full Reprint) 1318; Leahy v. State, 111 Tex.Cr.R. 570, 13 S.W.2d 874, 880 (19); State v. Ingram, 316 Mo. 268, 289 S.W. 637 (2).

4. Special ground four complains of the ruling of the court in excluding certain testimony of Mr. Thomas Howell Scott to the effect that after the alleged robbery of Mr. Glenn by the defendant Moyers, Moyers paid Scott $15. The defendant contends that it was relevant because "if, they claim, he had robbed anybody of thirty thousand dollars, he would have absconded." This evidence was to the effect that the defendant did not flee or conceal himself after the commission of the crime, and was thus consistent with his innocence. The evidence was not admissible. In Flannigan v. State, 135 Ga. 221 (3), 69 S.E. 171, it was said: "The court did not err in excluding evidence offered for the purpose of showing that the accused did not flee after the homicide, although he had full opportunity of flight." See also Lingerfelt v. State, 125 Ga. 4 (2), 53 S.E. 803, 5 Ann.Cas. 310; Dunn v. State, 13 Ga.App. 682 (3), 79 S.E. 764.

5. In special ground five movant avers, alleges and complains that the judge erred in instructing the jury as follows: "Now gentlemen you have been impaneled as fair and impartial jurors, free from any prejudices or bias, and you have been sworn to try this case on the evidence in the case. You are to take the evidence as it comes to you from the witness stand, including the statement of the accused, and take the law as it comes to you from the court, and on these you are to make up your verdict." Movant contends that this charge excluded from the consideration of the jury certain documentary evidence...