Reid v. State, 24108.

• Decision Date: 03 July 1934
• Docket Number: No. 24108.,24108.
• Citation: 176 S.E. 100,49 Ga.App. 429
• Parties: REID. v. STATE.
• Court: Georgia Court of Appeals

49 Ga.App. 429

176 S.E. 100

REID.

v.STATE.

No. 24108.

Court of Appeals of Georgia,

Division No. 1.

July 3, 1934.

Rehearing Denied Sept. 19, 1934.

Syllabus by Editorial Staff.

MacINTYRE, J., dissenting.

Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.

C. F. Reid was convicted of an offense, and he brings error.

Judgment affirmed.

W. O. Cooper, Jr., of Macon, for plaintiff in error.

Chas. H. Garrett, Sol. Gen., of Macon, for the State.

BROYLES, Chief Judge.

1. "Proof that a witness has been convicted of the unlawful sale of intoxicating liquor affords no ground for impeachment of the witness, and cannot be used to discredit his testimony. Only conviction for crimes involving moral turpitude serves as a basis for the impeachment, or can be held for a ground for discrediting the testimony of a witness who has been thus convicted." Wheeler v. State, 4 Ga. App. 325 (2), 61 S. E. 409. See, also, Lovinger v. State, 39 Ga. App. 116 (2), 118, 146 S. E. 346, and citations; Howard v. State, 144 Ga. 169 (2), 86 S. E. 540; Swain v. State, 151 Ga. 375 (4-a-h), 107 S. E..40; Grace v. State, 49 Ga. App.---- 175 S. E. 384, this term decided. A fortiori, a witness' testimony cannot be discredited by proof that he "has been in jail charged with crime." In the instant case counsel for the defendant, in cross-examining a witness for the state, asked this question: "How many times have you been in jail charged with crime?" The court sustained the objection of counsel for the state and refused to allow the witness to answer the question. Under the decisions just cited, the ruling of the court was not error. It is possible that a witness may have been many times in jail charged with crime and yet be innocent of having committed any crime at all, much less a crime involving moral turpitude. The ruling in Pierce v. State, 29 Ga. App. 68, 113 S. E. 47, must yield to the contrary rulings of the Supreme Court and the older rulings of this court, (a) Upon consideration of a motion for a rehearing, the foregoing headnote is substituted for headnote 1 as originally written. MacINTYRE, J., dissents from the ruling in this note.

2. "If any person, who has been convicted of an offense and sentenced to confinement and labor in the penitentiary, shall afterwards commit a crime punishable by confinement and labor in the penitentiary, he shall be sentenced to undergo the longest period of time and labor prescribed for the punishment of the offense of which he stands convicted. Penal Code 1910, § 1068. This section does not violate paragraph 8 of section 1 of article 1 of the Constitution of this state, which declares that 'no person shall be put in jeopardy of life, or liberty, more than once for the same offense.' Civil Code 1910, § 6364." Tribble v. State, 168 Ga. 699, 148 S. E. 593, 595.

3. "Section 1068 of the Penal Code does not violate paragraph 5 of section 1 of article 1 of the Constitution of this state, which guarantees to one accused of crime an impartial trial." Tribble v. State, supra.

4. It follows from the foregoing rulings in the Tribble Case, supra, that section 1068 of the Penal Code is not in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States, or of that provision of the Fifth Amendment to the Constitution of...