Shealey v. State

• Citation: 84 S.E. 839,16 Ga.App. 191
• Decision Date: 13 April 1915
• Docket Number: (No. 5864.)
• Parties: SHEALEY. v. STATE.
• Court: United States Court of Appeals (Georgia)

84 S.E. 839

16 Ga.App. 191

SHEALEY.

v.STATE.

(No. 5864.)

Court of Appeals of Georgia.

April 13, 1915.

Error from City Court of Oglethorpe; R. L. Greer, Judge.

West Shealey was convicted of carrying a pistol without a license, and brings error. Reversed.

Jere M. Moore, of Montezuma, for plaintiff in error.

Jule Felton, Sol., of Montezuma, for the State.

RUSSELL, C. J. On November 26, 1913, D. D. Mitchell made an affidavit charging the defendant, Shealey, with the offense of carrying a pistol without a license on the 18th day of November, 1913. On the 29th of November Shealey was committed upon this warrant. The defendant was tried in the city court of Oglethorpe upon an accusation dated April 16, 1914; the jury found him guilty; and exception is taken to the judgment refusing a new trial. It is unnecessary to refer to the general grounds of the motion for a new trial, for there was sufficient evidence to have warranted the verdict if the evidence had been admissible. However, in another ground of the motion for new trial complaint is made that the court erred in admitting, over the defendant's objection, testimony to the effect that the offense charged was committed on the 13th day of April, 1914; and we are of the opinion that the objections were well taken, and that the testimony in question should have been repelled. Without this testimony the evidence was doubtless insufficient to authorize a conviction; but, even if there was other testimony which would have authorized the conviction of the accused, a new trial should nevertheless have been granted, because it is not within the power of the court, in such a case, to know whether a verdict rests upon the legal or upon the illegal testimony. Aside from its merits upon other grounds, the defendant's objection to the testimony of the two witnesses named Brady, upon the ground that testimony tending to show his guilt at a time subsequent to the date of the affidavit upon which the accusation was based was inadmissible, was well taken. That such testimony is inadmissible is ruled in Chambers v. State, 85 Ga. 220, 11 S. E. 653, and in Turner v. State, 89 Ga. 424, 15 S. E. 488. It is well settled, of course, that the prosecution is not restricted in its proof to the precise date alleged in the indictment or other criminal accusation, but may prove the commission of the alleged offense at any time within the statute of limitations. But the rule prescribed in section 30 (4) of the Penal Code, as well as the decisions of this court in Hollingsworth v. State, 7 Ga. App. 18, 65 S. E. 1077, Holmes v. State, 7 Ga. App. 570, ...