Moyers v. State

• Decision Date: 17 October 1939
• Docket Number: No. 27665.,27665.
• Parties: MOYERS. v. STATE.
• Court: Georgia Court of Appeals

6 S.E.2d 438

MOYERS.

v.STATE.

No. 27665.

Court of Appeals of Georgia,

Division No. 1.

Oct. 17, 1939.

Rehearing Denied Dec. 14, 1939.

Syllabus by the Court.

1. "The right 01 one accuses' of crime to a thorough and sifting cross-examination of a witness appearing against him is not violated by ruling out a question hypothetical in nature, assuming facts not in evidence, and amounting to aimless, useless, and purposeless examination which would be waste of the court's time." Clackum v. State, 55 Ga.App. 44(10), 189 S.E. 397.

2. Where the indictment for robbery alleges the money taken to be the property of Glenn, and he is the president of a bank and in actual lawful possession of the money, the ownership may be laid in either the person having such actual lawful possession or in the bank which has the lawful legal title and the constructive possession, and the questions as to whether the bank had a bond indemnifying itself against loss in case of robbery, and whether the bank had made any demand upon the bonding company for reimbursement, were irrelevant under the facts in the instant case.

3. Where leading counsel was conducting the cross-examination of a witness, the court did not abuse its discretion in refusing toallow the defendant (an attorney at law) also to conduct the cross-examination.

4. The court did not err in excluding evidence offered for the purpose of showing that the accused did not flee after the robbery, although he had full opportunity of flight. Flannigan v. State, 135 Ga. 221, 69 S.E. 171.

5. In a case where documentary evidence is submitted, an instruction, "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, " is technically inaccurate and inapt. But, from the general structure of the charge and the scope of the evidence, it is apparent that the jury could not have been misled by the inaccurate expression, as excluding the documentary evidence from their consideration. Especially is this true where it appears that elsewhere in his charge the court instructed the jury: "A reasonable doubt, gentlemen, is a doubt for which you can assign a reason, not an arbitrary or capricious doubt. It is a doubt that would grow out of the case itself from a lack of evidence or from insufficient evidence, or from conflict in the evidence or from the defendant's statement, and it is such doubt as, after you have conscientiously given consideration to the entire case in an effort to arrive at the truth, would leave your minds uncertain and wavering as to what the truth is, That would be reasonable doubt. You are made by law the exclusive judges of the evidence. You are the exclusive judges of the credibility of the witnesses." (Italics ours.)

6. The requested charge was a hypothetical statement by way of instruction, and was insufficient because it embraced but a part of the issues and ignored all facts necessary to be found as basis for the verdict. Southern Railway Co. v. Wilcox, 59 Ga.App. 785, 791, 2 S.E, 2d 225.

7. The evidence, taken as a whole, did not warrant a charge on delusional insanity.

8. The court reduced its charge to writing, read it, and filed the same with the clerk in response to the timely written request of the defendant so to do. Thereafter, the jury returned and asked the court for additional instruction which the court gave, in part from the original written charge, which the court immediately refiled, and in part from outside the original written charge, which part outside of the original written charge the judge had properly reduced to writing before giving it to the jury and immediately thereafter filed it with the clerk. Held: The court did not commit reversible error in that it did not comply with the provisions of the Code, §§ 81-1102, 81-1103, which are as follows: "The judges of the superior, city, and county courts shall, when the counsel for either party requests it before argument begins, write out their charges and read them to the jury, and it shall be error to give any other or additional charge than that so written and read. * * * The charge so written out and read shall be filed with the clerk of the court in which it was given, and shall be accessible to all persons interested in it; and the clerk shall give certified copies thereof to any person applying therefor, upon payment of the usual fee."

Error from Superior Court, Fulton County; Paul S. Etheridge, Judge.

W. T. Moyers was convicted of robbery, and he brings error.

Affirmed.

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...