Pope v. State, 20677.
| Citation | 157 S.E. 211,42 Ga.App. 680 |
| Decision Date | 17 February 1931 |
| Docket Number | No. 20677.,20677. |
| Parties | POPE . v. STATE. |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court.
The court properly sustained the demurrer to the plea in abatement.
Syllabus by the Court.
The second count of the indictment is substantially in the language of the statute; and "where an indictment charging forgery contains two counts, the first being complete within itself, including a copy of the instrument alleged to have been fraudulently forged and uttered, which is set out in full, and in the second count express reference to the instrument is made, thereby purporting to incorporate it into the second count, and thus charging all the substantial elements of the offense in the second count, the failure to set out the alleged forged instrument in the second count" will not render that count subject to demurrer.
Syllabus by the Court.
The conviction of the defendant on the second count of the indictment charging uttering and publishing a forged will was not repugnant to or inconsistent with his acquittal on the first count charging forgery of the will.
Syllabus by the Court.
The court did not err in refusing to grant a mistrial.
Syllabus by the Court.
The third special ground of the motion for a new trial is not sufficiently complete and understandable to be considered by this court.
Syllabus by the Court.
"It is not, on the trial of a criminal case, competent to introduce in behalf of the accused, evidence of his own self-serving declarations."Syllabus by the Court.
"On the trial of a criminal case, where the rule for the sequestration of witnesses has been invoked, the fact that one offered as a witness has heard the testimony given by other witnesses, does not render his testimony incompetent; and the admission of the evidence of such a witness is not cause for a new trial."
Syllabus by the Court.
The discretion of a trial judge in overruling a motion for a continuance, unless abused, will not be controlled by the appellate court, and in this case it was not abused.
Syllabus by the Court.
"One may legally be convicted of a felony, other than treason or perjury, where the only evidence directly connecting him with the offense charged is the testimony of an accomplice, and where the only corroboration is the testimony of other accomplices."
Syllabus by the Court.
There was ample evidence to support the conviction of the accused, and the court did not err in overruling the motion for a new trial.
Error from Superior Court, Walker County; James Maddox, Judge.
D. F. Pope was convicted for uttering and publishing as true a forged will, and he brings error.
Affirmed.
Conforming to answers to question certified in 156 S. E. 599.
See also 154 S. E. 194.
John D. Pope, of Knoxville, Tenn., Mann & Mann, of Dalton, and Norman Shattuck, of La Fayette, for plaintiff in error.
M. Neil Andrews, Sol. Gen., and Rosser & Shaw, all of La Fayette, and Dean Owens, of Rome, for the State.
D. F. Pope was charged in the first count of an indictment with forging a will, and in the second count with uttering and publishing as true the forged will; and was convicted on the second count only. The bill of exceptions assigns error upon the sustaining of a demurrer to the defendant's plea in abatement and dismissing said plea, as shown by exceptions pendente lite; and upon the overruling of the defendant's demurrer to the indictment, as shown by exceptions pendente lite; and upon the overruling of his motion for a new trial.
1. The plea in abatement alleges in substance that the indictment should be quashed because the sheriff, who was "marked on said indictment as the prosecutor, " "picked up two grand jurors" who "acted on said indictment." The plea in abatement does not allege that the tales grand jurors summoned by the sheriff were friends of the sheriff or even acquaintances; or that they had any interest in the sheriff; or that they had any ill will towards the defendant; or that they had any personal interest in the prosecution of the defendant or the finding of the true bill against him; or that the defendant was harmed in any way; or that the defendant and his counsel did not know of the alleged disqualification of said grand jurors before the indictment was presented to the grand jury for consideration; or that the sheriff knew, at the time he summoned said two tales grand jurors, that the bill against the defendant would be presented to this grand jury for consideration. The court properly sustained the demurrer and dismissed the plea in abatement.
The first and third grounds of demurrer to the indictment relate to the first count thereof, and. as there was no conviction on this count, they will not be discussed.
2. The second ground of demurrer alleges that the second count of the indictment does not allege how the defendant uttered the forged will; that the allegations thereof are conclusions of the pleader; and that said count is not complete, because no copy of the alleged forged will is set out therein. An examination of the second count of the indictment shows that it is sufficiently explicit and substantially in the language of the statute. See Penal Code, § 232, necessarily construed in connection with section 231. Nor was the second count defective because of its failure toinclude a copy of the alleged forged will, since the first count embodied a copy of the alleged will and the second count virtually incorporated it by special reference to "the false, forged, altered and Counterfeited will and testament set out and referred to in the preceding count." "Where an indictment charging forgery contains two counts, the first being complete within itself, including a copy of the instrument alleged to have been fraudulently forged and uttered, which is set out in full, and in the second count express reference to the instrument is made, thereby purporting to incorporate it into the second count, and thus charging all the substantial elements of the offense in the second count, the failure to set out the alleged forged instrument in the second count" will not render said second count subject to demurrer. Durden v. State, 152 Ga. 442(1), 110 S. E. 283. This question was adjudicated in Pope v. State. 41 Ga. App. 653, 154 S. E. 194. The demurrer to the indictment was properly overruled.
3. The first special ground of the motion for a new trial alleges that the verdict was inconsistent, repugnant, and contrary to law, in that the jury found the defendant not guilty of forging the will, and guilty of uttering and publishing said will knowing it to be forged. Whether the defendant forged the will or some one else did it, if the defendant knew that it was a forged will, and, so knowing, tittered and published it, a conviction of the latter offense, as set out in the second count in the indictment, would not constitute a repugnancy or inconsistency. This question also is adjudicated in Pope v. State, supra. See, also, Hoskins v. State, 11 Ga. 95. and Durden v. State, 29 Ga. App. 548, 116 S. E. 41, cited therein.
4. The second special ground of the motion for a new trial alleges that the court erred in refusing to grant a mistrial "in connection with the evidence of Tom Little" in reference to another alleged forged will, and that the testimony was prejudicial to movant. The ground discloses that when the witness failed to connect the defendant with the transaction referred to, the state's counsel voluntarily withdrew the testimony from the consideration of the jury, and the court then said to the jury: ...
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Pope v. State
...157 S.E. 211 42 Ga.App. 680 POPE v. STATE. No. 20677.Court of Appeals of Georgia, First DivisionFebruary 17, 1931 . Syllabus. by the Court. . . Plea in. abatement to indictment, alleging sheriff marked on. indictment as prosecutor picked up two grand jurors who acted. on indictment, not showing jurors' ......