Russell v. State
Decision Date | 11 May 1951 |
Docket Number | No. 33389,No. 2,33389,2 |
Citation | 83 Ga.App. 841,65 S.E.2d 264 |
Parties | RUSSELL v. STATE |
Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The assignments of error in paragraphs 6a, b, and c (the general grounds), and in paragraph 6e of the petition for certiorari were not argued or insisted upon in the brief for the defendant and are treated as abandoned.
2. It is left to the sound discretion of the trial court to determine whether or not a child of tender years is a competent witness; and where the court examines a child as to its understanding of the nature of an oath and decides that it is competent to testify, this court will not interfere, where it does not appear that such discretion was manifestly abused.
3. Where the charge of the trial court was not sent up in the record or bill of exceptions, this court will presume that the judge charged correctly, if the contrary be not manifest from the exception taken.
The defendant, R. F. Russell, was tried and convicted of assault and battery in the Criminal Court of Fulton County upon an indictment transferred to that court by the Superior Court of Fulton County. Being dissatisfied with the verdict the defendant applied to the Superior Court of Fulton County for a writ of certiorari. The assignments of error in the petition for certiorari are predicated upon the usual general grounds and the following special grounds: testimony by the court was extremely prejudicial and hurtful to petitioner.
'(e) Because the court erred in allowing the mother, Mrs. E. T. Manley, a witness for the State, to testify what her daughter, Janice Manley, told her after the alleged assault took place, because her daughter, Janice Manley, was in court and if competent was capable of testifying herself, and upon further ground that the court erred because said testimony was hearsay.
It appears from the brief of evidence attached to the petition for writ of certiorari that Mrs. Manley testified:
Counsel for the defendant made a motion that Janice Manley be subjected to a preliminary examination as to her competency as a witness on account to her tender age, and the following examination was conducted by the court:
'Court: Janice, how old are you?
'Janice Manley: Eight years old.
'Court: Do you know what your are doing when you are sworn?
'Janice Manley: No.
'Court: What grade are you in?
'Janice Manley: Third grade.
'Court: Do you know what will happen to you if you tell a story?
'Janice Manley: No.
'Court: I think she is a competent witness.'
Janice Manley testified:
The defendant introduced fourteen witnesses who testified that this character was good and that they knew nothing against his character, and the defendant made the following statement: 'I own a grocery store at 520 Atwood Street, S.W., Atlanta, Georgia. On July 30, 1948, at about seven o'clock P. M., Janice Manley came into my grocery store. I was fixing to close up and she asked me to see some drawing books. I was working on my books and showed her where the drawing books were and she went to look for them. I kept working on my books. I never touched Janice. While she was in my store several boys came in to make purchases and also a man came in. I do not know any of their names. My store is located right on the...
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Long v. State, 33571
...to testify, this court will not interfere, where it does not appear that such discretion was manifestly abused. Russell v. State, 83 Ga.App. 841, 65 S.E.2d 264, and For the reasons stated in grounds 1, 2, 3, and 4 of this syllabus, the trial court erred in overruling the motion for a new tr......
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Smith v. State
... ... Russell v. State, 83 Ga.App. 841, ... 65 S.E.2d 264, and citations.' Long v. State, 84 Ga.App. 638, 66 S.E.2d 837, 839 ... 4. 'The Code defines an assault as 'an attempt to commit a violent injury on the person of another', and a battery as 'the unlawful beating of another'. Code, ... ...
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Ruff v. State, 49526
...he understood the meaning of testifying under oath. There is no merit in the complaint that the court did not so find. Russell v. State, 83 Ga.App. 841, 65 S.E.2d 264; Ellison v. State, 197 Ga. 129(2), 28 S.E.2d 453; Thurmond v. State, 220 Ga. 277, 138 S.E.2d 372; Turpin v. State, 121 Ga.Ap......
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Graham v. State, 34287
...Bacon v. State, 209 Ga. 261, 71 S.E.2d 615. 3. As to the competency of the eight-year old prosecutrix as a witness, see Russell v. State, 83 Ga.App. 841, 65 S.E.2d 264; Long v. State, 84 Ga.App. 638(6), 66 S.E.2d Judgment reversed. GARDNER, P.J., and TOWNSEND, J., concur. ...