Pressley v. State
| Decision Date | 13 September 1950 |
| Docket Number | No. 17082,17082 |
| Parties | PRESSLEY v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A record of an agency of the national government which is authenticated in substantial compliance with an act of Congress, and which is sufficiently certified and authenticated under rules of the common law, is admissible in evidence in the courts of this State.
2. An amended ground of motion for new trial based upon the refusal of the court to declare a mistrial because of an alleged improper remark of the solicitor-general, which fails to aver that the remark was not supported by any evidence, or properly deducible from any evidence, is incomplete, and presents no question for review.
3. Any competent evidence tending to show that the testimony of a witness is induced by a hope of benefit is admissible to discredit the witness, but such discrediting evidence does not make the witness incompetent to testify.
4. A mistrial should not be granted for alleged improper remarks of the solicitor-general, where the remarks are sustained by evidence.
5. The trial court properly refused the written request to charge upon an independent crime which was not in issue under the indictment.
6. The verdict was supported by the evidence, and the general grounds of the motion for new trial were properly overruled.
Leon A. Wilson, II, Herbert W. Wilson, and Harry M. Wilson, all of Waycross, for plaintiff in error.
Eugene Cook, Atty. Gen., J. R. Parham, Asst. Atty. Gen., Robert E. Andrews, Atlanta, for defendant in error.
1. Ground 4 of the amended motion for new trial assigns error on the admission in evidence of a certified and authenticated copy of the original dental chart of the deceased from the Bureau of Medicine and Surgery of the Department of the Navy. The objections were: that the copy was not duly authenticated; there was no certificate that the certifying officer's signature was genuine, or that the certification was in proper form; the certification did not comply with the laws of this State with reference to the authentication of a record; there was no statement that the copy is a copy of the record; there was no certificate that E. E. Woods, who signed as Acting Judge Advocate General of the Navy, in fact signed the certificate; and there was no seal annexed.
The certification and authentication objected to was in the following form:
'United States of America
'Department of the Navy
'Washington, D. C., 27 June 1949
'I hereby certify that the annexed is a true copy of the dental record of Ex-Motor Machinist's Mate William Edmond Edwords, USN, 832 26 51. I do hereby certify that I am custodian of the medical records of all enlisted men who have been discharged from the United States Navy. I do further certify that the record hereto attached is a true and correct copy of the original dental chart of William Edmond Edwards, which is on file in the Bureau of Medicine and Surgery.
'[Signed] C. A. Swanson
'C. A. Swanson
'Chief of the Bureau of
Medicine and Surgery
'(Official Title)
'OFFICE OF THE SECRETARY
'I hereby certify that C. A. Swanson, who signed the foregoing certificate, was at the time of signing Chief of the Bureau of Medicine and Surgery and that full faith and credit should be given his certification as such.
'In Testimony Whereof, I have hereunto set my hand and caused the Seal of the Navy Department to be affixed this 1st day of July, one thousand nine hundred and forty-nine.
'[Signed] E. E. Woods
'[Seal]
E. E. Woods
'Acting Judge Advocate General of the Navy'
'For the Secretary of the Navy'
The defendant cites and relies upon Edmonds v. State, 201 Ga. 108(6), 39 S.E.2d 24. The Edmonds case is not in point on its facts with the present case, and does not support the contention that the dental chart of the deceased was improperly admitted in evidence. As was pointed out in the Edmonds case, there is no statute in this State concerning the admissibility of authenticated copies or transcripts of records, papers, or documents from any department or agency of the United States Government. The Code, § 38-601, relates to a certificate by a public officer of the State or of some County in the State. The Code, §§ 38-627 and 38-630, are codifications from U.S.C.A., Title 28, §§ 687 and 688, and relate to public acts, records, and judicial proceedings of other States or territories.
The decision in the Edmonds case was written prior to the Act of Congress of June 25, 1948, consolidating Sections 661-667 and 671 of Title 28 U.S.C.A., the new section being 1733, which provides as follows:
The certificate in the instant case was signed by C. A. Swanson, as Chief of the Bureau of Medicine and Surgery of the Department of the Navy, and he certifies that 'the record hereto attached is a true and correct copy of the original dental chart of William Edmond Edwards, which is on file in the Bureau of Medicine and Surgery.' The authentication by E. E. Woods, as Acting Judge Advocate General of the Navy, that 'C. A. Swanson who signed the foregoing certificate, was at the time of signing Chief of the Bureau of Medicine and Surgery,' is a sufficient verification that the certificate was signed by the Chief of the Bureau of Medicine and Surgery, who was C. A. Swanson.
The certificate in this case is not objectionable because it was made by E. E. Woods, Acting Judge Advocate General, acting for the Secretary of the Navy. A deputy officer may properly certify for the chief officer nominally having custody, and in point of form the name and title of the superior should be used. 5 Wigmore on Evidence, (3d Ed.), 520, § 1633(8).
On the subject of authentication it is stated in 20 Am.Jur., 836, § 989, as follows:
The certification and authentication of the dental chart in this case, which purports to be under the seal of the Navy Department (although the imprint of the seal is not entirely clear), is in substantial compliance with the act of Congress of June 1948, U.S.C.A. Title 28, § 1733. This State not having provided by statute the manner for the authentication of Federal records, the trial court did not err in admitting a record proved in the manner provided by Federal law. Furthermore, the authentication of the dental chart of the deceased was sufficient to meet the requirements of the common law. Compare 20 Am.Jur., 776, § 922, and citations.
2. Ground 5 of the amended motion for new trial assigns as error the refusal of the trial court to declare a mistrial, on motion of counsel for the defendant, because of a remark made by the solicitor-general, as follows: The motion for mistrial was as follows: It is contended that the statement was improper and prejudicial because it tended to discredit the defendant's witness in the eyes of the jury, and that the testimony of the witness was material and beneficial to the rights of the defendant. The court did not rebuke counsel, nor tell the jury to disregard the statement.
This ground of the motion for new trial is incomplete, in that the movant does not aver anywhere in this ground that the remark of the solicitor-general was not based upon any evidence. Code, § 81-1009. While the law condemns improper remarks and argument of counsel based on extrinsic and prejudicial matters which are not supported by any evidence, in the absence of anything to the contrary, the solicitor's remark will be regarded as his deduction from the evidence. Floyd v. State, 143 Ga. 286, 289, 84 S.E. 971. If the solicitor's deductions were illogical, unreasonable, or even absurd, the matter was one for reply by defendant's counsel, and not for rebuke by the court. Owen v. State, 120 Ga. 209(3), 47 S.E. 545.
3. Ground 6 is expressly abandoned. In ground 7 it is contended that the court erred in refusing to exclude the testimony of John Howard Long, who was jointly indicted with the defendant, because Long's testimony was made with the hope of benefit, as indicated by a letter identified by him, in which the witness had stated:
The rule which excludes the admission of a confession induced by hope of benefit or fear of injury, Code, § 38-411, would not make the oral testimony of Long inadmissible. Any competent evidence tending to show that the testimony...
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