Sheppard v. State

• Decision Date: 15 December 1931
• Docket Number: 21818.
• Citation: Sheppard v. State, 44 Ga.App. 481, 162 S.E. 413 (Ga. App. 1931)
• Parties: SHEPPARD v. STATE.
• Court: Georgia Court of Appeals

162 S.E. 413

44 Ga.App. 481

SHEPPARD v. STATE.

No. 21818.

Court of Appeals of Georgia, First Division

December 15, 1931

Rehearing Denied Jan. 12, 1932.

Syllabus by the Court.

Evidence held sufficient to corroborate testimony of accomplice and to sustain conviction for theft of automobile.

Refusal to grant continuance, on striking of new indictment and solicitor's announcement that case would be tried under original indictment secured several months before held not error.

Admitting testimony concerning defendant's having disguised Ford automobile and altered motor number thereon held not erroneous, in prosecution for stealing Buick automobile where such evidence tended to show plan and design.

Solicitor's argument that defendant lied with respect to statement contradicted in material part by evidence held not to warrant grant of mistrial.

Instruction to disregard question of defendant's guilt of larceny of another automobile held not erroneous as expressing opinion that defendant stole other car.

Argument of solicitor indicating intention to follow jury's verdict with respect to punishment of defendant's accomplice held not to warrant new trial, especially where invited.

Instruction with respect to accomplice's testimony and attempt to impeach accomplice witness who testified against defendant held not erroneous as intimating court's opinion.

Failure to refer to defendant's statement in instruction that jury should try case according to evidence held not to render instruction erroneous.

Instruction to adopt defendant's statement if jury believed it more credible than evidence held sufficient (Pen. Code 1910, § 1036).

Instruction to disregard testimony of witness whom jury believed beyond reasonable doubt was unworthy of belief, though erroneous held not prejudicial, where witness in question defendant's accomplice, was thoroughly impeached.

Court's failure to instruct jury as to methods of impeaching witness will not require granting new trial, where no request was made.

Instruction as to jury's duty in determining how far testimony of accomplice was corroborated held not erroneous as expressing opinion.

Refusal to permit witness to testify that state's witness had committed particular theft held not error.

Refusal of requested instruction is not error, where court's charge on subject substantially covers subject-matter of request.

One may be convicted of larceny without being actually present at time and place of theft (Pen. Code 1910, § 42).

For no reason assigned did the court err in overruling the motion for a new trial.

Error from Superior Court, Bibb County; H. A. Mathews, Judge.

Frank Sheppard was convicted of stealing an automobile, and he brings error.

Affirmed.

McClellan & Jacobs and Thos. A. Jacobs, Jr., all of Macon, and H. F. Griffin, Jr., of Jeffersonville, for plaintiff in error.

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

LUKE J.

The indictment in this case charges that, on May 20, 1929, in Bibb county, Ga., Robert L. Wilson, alias Shorty Wilson, and Frank Sheppard, did steal "one Buick touring car automobile, of the value of one thousand dollars, and of the personal goods of J. P. Myddleton." Sheppard was convicted, and he excepts to the judgment overruling his motion for a new trial.

Since the brief of evidence is so long, and the amendment to the motion for a new trial covers seventy-three pages and contains thirty-two grounds, we shall undertake to shorten this decision somewhat by stating enough of the evidence to indicate the nature of the case and shed some reflected light upon the numerous special grounds, and by grouping some of the special assignments which involve the same principles of law.

J. P. Myddleton testified in substance that, on May 21, 1929, his "Buick touring-car automobile" was stolen and carried away from a place where he had parked it on a certain street in Macon, Bibb county, Ga.; that about a week after his car was taken he was apprised of the fact that the sheriff of Twiggs county had it; that there were a few scratches on the car when he got it back, and one tire had been exchanged; and that the automobile was worth about $600.

S. G. Kitchens, sheriff of Twiggs county, testified in substance that at about 12 o'clock on May 22, 1929, he saw the defendant with Shorty Wilson in a Ford automobile at Dry Branch, a point twelve miles from defendant's home, going towards defendant's home; that Wilson lived about fourteen miles from defendant's residence; that witness had frequently seen Wilson and defendant together in the same Ford; that witness had seen the Buick automobile hidden in the bushes about three or four hundred yards from defendant's house, and had instructed his deputies, John G. Slappy and a Mr. Barrentine to watch it; that witness "found the Ford roadster that evening at the defendant's house"; that the defendant claimed to own the Ford roadster; that witness turned said roadster over to "Mr. J. D. Lewis, the husband of Mrs. Lewis"; that, after defendant was in jail, witness heard him say, in reply to questions of the solicitor, that the radiator "was like it was when he first saw it, and he didn't have anything to do with buying it," but was present when Wilson did; that the "radiator shell was on the Ford when he first saw it"; that he had nothing to do with buying certain paint bought from T. C. Burke & Co.; and that he had nothing to do with offering the Ford car for sale. The witness Kitchens further swore: "It was exactly ten days from the time I took charge of the Buick until Sheppard showed up, *** and during that time I had been looking for him and could not locate him. I *** asked him why he went off, and Mr. Griffin [his lawyer] said, in defendant's presence, 'He was scared."'

Joe Daniel testified in part that he remembered the defendant's coming to the place of business of the Daniel-Johnson-Motor Company, at Macon, Ga., during the year 1929, "with a Ford roadster with a nickle-plated radiator shell," and with the motor number "changed or rubbed off," and that the defendant discussed trading the Ford car, but that they could not "get together," and defendant said he might come back. This witness further swore that he was present in jail when the solicitor asked the defendant if he bought some paint from T. C. Burke Company, and heard the defendant say that he had not, but that Wilson had; and that witness also heard the defendant tell the solicitor that he had not bought a nickle radiator shell from Jones-Stewart Motor Company, and "did not know anything about it."

W. H. Williams testified in part that, while he was working at T. C. Burke's Incorporated on May 22, 1929, he sold the defendant "two quarts of enamel paint and two brushes," and "one and a half pint of red enamel and one brush"; that "the enamel paint and two brushes were bought first"; that the defendant said "he was going to paint a Ford roadster," and witness told him that one quart would be enough, but that defendant said "he wanted some to go underneath-- wanted a high gloss"; and that when witness saw the defendant in jail afterwards he denied buying the paint."

Z. L. Darden testified in substance that, when he was in the employ of Jones-Stewart-Motor Company, the defendant and a "little short fellow" came to the place of business of said company, and defendant bought a "nickle-plated radiator shell" for $3.50.

Mrs. J. D. Lewis testified that on about May 8, 1929, her dark green Ford roadster disappeared, and that when she recovered it about a month later it was changed in appearance--had "a crude black paint job on it," and a new silver-looking radiator shell, and that "the lights had globes and shades over them, round looking things sticking over the lights."

C. A. Leard testified that "in the summer of last year" the defendant came to the place of business of Adams-Buchanan Motor Company, and witness "tried out a Ford he brought there"; that the motor number of the car was so defaced that he could not tell what it was; that witness heard defendant state to the solicitor in jail that he did not buy any paint at T. C. Burke's, and heard him deny any knowledge of "a nickle-plated radiator shell"; and that on the occasion when witness tried out the Ford Shorty Wilson was with him, and said the car belonged to the defendant.

O. L. Barrentine, a deputy sheriff of Twiggs county, testified in substance that on May 22, 1929, he was with Deputy Sheriff John G. Slappy when Shorty Wilson, carrying some paint and brushes, and the defendant, carrying a package the contents of which was unknown to witness, were seen approaching a "Buick touring automobile," which was located a quarter of a mile from the public road and half a mile from defendant's home; that Wilson said the car was his, and the defendant said nothing; that, when Slappy asked Wilson what he had, he said "paint," and that, when Slappy further asked him what he was going to do with the paint, Wilson said "paint the car"; and that Wilson was arrested and the paint taken from him, but that the defendant was not arrested at that time.

Robert alias Shorty Wilson, testified in substance that defendant had the "Ford roadster car" two or three weeks, but that he had it only twenty-four hours before "he purchased the nickle-plated radiator shell for it"; that on the same day "we bought a black paint for the ford," and "just smeared the paint over the old paint"; that they threw the old radiator shell away; that "the defendant also bought a motor-meter for the Ford at Sears & Roebuck's, and some lampshades--bright tin-like pieces which could be rolled up--the shades that hang over the lights"; that "I put those on myself," and "we both put on the radiator shell"...