Shelton v. State, 40797
| Decision Date | 03 March 1965 |
| Docket Number | No. 40797,No. 2,40797,2 |
| Parties | Jay P. SHELTON v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where the rule requiring that witnesses be examined out of the hearing of each other (Code § 38-1703), has been invoked a witness who has remained in the
courtroom during the progress of the trial is not disqualified from testifying.
2. A witness who gives a responsive answer is properly allowed to explain it.
3. Where the record does not disclose the grounds upon which a motion for mistrial was made during the trial of the case no question is presented for review.
4. The trial court did not err in admitting in evidence photographs and a record of fingerprints of the defendant for the purpose of establishing identity.
5. One charged with larceny will not be heard to raise nice and delicate questions as to the title of the article stolen.
6. No harmful error is shown by the seventh ground of the motion for new trial.
7. The excerpts from the charge excepted to in special grounds 9, 10 and 11 show no error.
8. A defendant cannot successfully object to evidence allegedly obtained as a result of an illegal search and seizure of another person's property and to which the defendant disclaims any interest.
9. Where an indictment charges in separate counts larceny and receiving stolen goods the State is not required to elect upon which ground it will travel and insist upon a conviction.
10. The evidence did not demand a verdict for the defendant.
The defendant was indicted in a three-count indictment for 1, larceny of a described automobile, 2 receiving stolen property knowing the same to have been stolen, and 3 possessing a stolen automobile knowing that the identification number had been removed and falsified with intent to conceal and misrepresent its identity. On the trial of the case the jury returned a verdict of not guilty on the first count and of guilty on the second and third counts. Thereafter, the defendant's amended motion for new trial was overruled and he now assigns error on such adverse judgment.
Wesley R. Asinof, Chester E. Wallace, Atlanta, for plaintiff in error.
William T. Boyd, Sol. Gen., J. Robert Sparks, J. Walter LeCraw, William Hall, Jr., Atlanta, for defendant in error.
1. Special ground 1 of the amended motion for new trial assigns error on the refusal of the trial court to permit a witness for the defendant to testify. The record discloses that the 'rule' had been invoked and that the witness had remained in the courtroom for various periods of time during the progress of the trial while other witnesses testified.
Under the decision of the Supreme Court in response to a certified question by this court (Shelton v. State, 220 Ga. 610, 140 S.E.2d 839), the witness was not disqualified from testifying in the case and while the defendant did not notify the trial court at that time as to the facts he expected to prove by such witness it was because the trial court refused to permit such showing.
An examination of the expected testimony of such witness contained in the amended motion for new trial shows that while some of such testimony would not have been admissible over proper objection other parts of such expected testimony were admissible and relevant. Accordingly, the trial court erred in overruling such ground of the defendant's motion for new trial.
2. Special ground 2 complains that the trial court erred in failing to exclude a part of an answer to a question asked a State's witness by the defendant as being not responsive to the question asked The witness answered the question with a 'no sir' and then explained his answer as he is permitted to do. See Marques v. Ross, 105 Ga.App. 133, 138, 123 S.E.2d 412, and citations. The answer was responsive to the question asked and is therefore distinguishable from cases exemplified by Henderson v. State, 208 Ga. 73, 65 S.E.2d 175, where the witness stated a legal conclusion, and Mickle v. Moore, 188 Ga. 444(6), 4 S.E.2d 217, where the answer was not responsive to the question asked.
3. Special grounds 3 and 5 complain that the trial court erred in failing to grant a mistrial on motion of the defendant, but such grounds do not disclose the grounds on which such motions were made during the trial of the case. Whitehead v. State, 101 Ga.App. 732, 115 S.E.2d 429.
4. Under the decision of the Supreme Court in Cooper v. State, 182 Ga. 42(2), 184 S.E. 716, 104 A.L.R. 1309, the trial court did not err in admitting in evidence a photograph of the defendant which was identified by various witnesses to connect him with possession of the stolen automobile, and for the...
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