Shelnutt v. Phillips

• Decision Date: 16 March 1966
• Docket Number: No. 41683,No. 1,41683,1
• Citation: 113 Ga.App. 321,147 S.E.2d 803
• Parties: Mrs. J. E. SHELNUTT v. J. M. PHILLIPS
• Court: Georgia Court of Appeals

Page 803

147 S.E.2d 803

113 Ga.App. 321

Mrs. J. E. SHELNUTT v. J. M. PHILLIPS.

No. 41683.

Court of Appeals of Georgia, Division No. 1.

March 16, 1966.

Eva L. Sloan, Joseph B. Duke, Milledgeville, for appellant.

Lewis, Rozier & Hitchcock, Sparta, Martin, Snow, Grant & Napier, Macon, for appellee.

Syllabus Opinion by the Court

FRANKUM, Judge.

1. 'No precise and universal test of the relevancy of testimony is furnished by the law. The question must be determined in each case according to the facts of that particular case and in accordance with the teachings of reason and judicial experience. Stephen's Digest of Evidence 12; Thayer's Cases on Evidence, 2, 3. One general rule on the subject may be laid down. If the evidence conduces in any reasonable degree to establish the probability of the fact in controversy, it should go to the jury, or, as expressed by Mr. Greenleaf, 'if the evidence tends to prove the issue, or constitutes a link in the chain of proof, although alone it might not justify a verdict in accordance with it (it should be admitted).' 1 Greenleaf on Ev. (15th Ed.) § 51. In other words, any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant. 11 Cyc. 174; Walker v. Roberts, 20 Ga. 15; Sample v. Lipscomb, 18 Ga. 687.' Alexander v. State, 7 Ga.App. 88, 89, 66 S.E. 274, 275. 'When facts are such that the Jury, if permitted to hear them, may or may not make an inference pertinent to the issue, according to the view which they may take of them, in connection with the other facts in evidence, they are such as the Jury ought to be permitted to hear.' Walker v. Roberts, 20 Ga. 15. 'That the testimony objected to falls short of proving the fact sought to be established is not in itself sufficient reason for excluding it, provided that it, alone or in connection with other testimony, tends to prove the matter in issue. Livingston v. Barnett, 193 Ga. 640(3-a), 19 S.E.2d 385. As further stated in McNabb v. State, 70 Ga.App. 798, 799, 29 S.E.2d 643, 644, 'Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant. " Garner v. State, 83 Ga.App. 178, 184, 185, 63 S.E.2d 225, 230. Under the foregoing rules, where the issue presented to the jury was whether or not the defendant had, in accordance with her contentions, paid the plaintiff a particular sum of money in satisfaction of the note sued on, or had paid a lesser sum as contended by the plaintiff, where the defendant testified in support of her contention that she had deposited in her bank accounts all the monies which she received from the sale of merchandise by her store, and that she had received and deposited no other funds, her copy of her State sales tax return for the month in question, showing total gross sales of a substantially lesser amount than that shown to have been deposited in her bank accounts, together with copies of ledger sheets showing activity in her bank accounts for the months in question, were relevant evidence which could be considered together as a circumstance tending to refute her contention, and they were, therefore, admissible over the objection made thereto, which was, in substance, that such evidence had no bearing on the issues before the court and shed no light upon any subject matter of the suit. The trial court did not err in admitting the defendant's sales tax return produced pursuant to notice nor in admitting the properly identified bank ledger sheets produced pursuant to subpoena duces tecum.

2. The fifth enumeration of error relates to the refusal of the court...