Stanley v. State, 36433
| Decision Date | 04 December 1956 |
| Docket Number | No. 2,No. 36433,36433,2 |
| Citation | 94 Ga.App. 737,96 S.E.2d 195 |
| Parties | R. E. STANLEY v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where on the trial of a defendant in a criminal case a mistrial is moved by counsel for the defendant because of a question by the solicitor general to one of the State's witnesses, where the defendant's character was not in issue and the question attempted to place his character in issue in a manner obviously prejudicial to the defendant, the court should have interposed and at least cautioned the jury to disregard the question, or rebuked the solicitor, or in some manner endeavored to remove the improper impression from their minds. Failure to either grant the motion or give any proper cautionary instructions constituted reversible error.
2. Where, on the trial of one charged with receiving stolen goods in Fulton County, Georgia, knowing them to have been stolen, error is assigned upon the failure of the State to establish the venue of the crime, this court will not grant a new trial upon an assignment of error that the State failed to prove the venue alleged where it appears that the jury is authorized to find from the evidence adduced upon the trial that in Fulton County (the alleged venue) a burglary occurred in a designated furniture store from which enumerated articles of furniture were stolen and placed in a truck behind the furniture store; that the defendant hired a third person as his agent to go to the furniture store and drive the truck away and meet him at a designated rendezvous; and that the articles of furniture which were in the truck when driven away from the furniture store are those enumerated in the indictment. The jury is authorized to infer from the facts found that the defendant received the enumerated articles of furniture through his agent knowing them to be stolen and to conclude that the venue was established as laid in the indictment.
Under an indictment in four counts charging the defendant consecutively with (1) burglary, (2) receiving stolen goods knowing them to have been stolen, (3) burglary, and (4) receiving stolen goods knowing them to have been stolen, the defendant was found guilty under count 2, and the jury acquitted him on counts 1 and 3, and the trial court directed a verdict in favor of the defendant on count 4. The material allegations of count 2 of the petition with which we are here concerned are as follows: The defendant 'did have, buy and receive from some person who is to the grand jurors unknown, one dark green occasional chair, one light green occasional chair, one Kern chair (velvet, gold color), one grey flowered barrel back chair, one green velvet Duke chair, two gold flowered loveseats, one light green barrel-back occasional chair, one Naverly Oliva chair (brown striped cloth), one high backed wing chair with gold flowered cloth, one grey tufted back lounge chair, one step table with leather top and four drawers, one book & lamp table with leather top and one drawer, one grey Pullman chair known as 'Pullmanaire' chair all of the value of $1,694.85 and the property of the National Manufacture & Stores Corporation doing business under the trade names of Myers-Peachtree and Myers Dickson-Peachtree; said property having been stolen and having been wrongfully, fraudulently and privately taken and carried away from the storehouse and place of business of the said National Manufacture and Stores Corporation, in said county, on said date, by the said unknown person, with intent to steal the same, after the said unknown person had with force and arms broken and entered the said storehouse and place of business, where valuable goods were contained with intent to steal; and accused well knew at the time accused so had, bought and received said property from the said unknown person, that the same had been so burglariously stolen and carried away as aforesaid by the said unknown person; said unknown person has not been tried and convicted for the theft of said property and burglary as above described, for the reason he is to the grand jurors unknown and cannot be apprehended; contrary to the laws of said State, the good order, peace and dignity thereof.'
Wesley R. Asinof, J. O. Ewing, William E. Spence, Joe Salem, Atlanta, for plaintiff in error.
Paul Webb, Solicitor-General, C. O. Murphy, Carl B. Copeland, Thomas R. Luck, Jr., Eugene L. Tiller, Atlanta, for defendant in error.
1. In his motion for new trial, the defendant assigns error on the usual general grounds and two special grounds. In special ground 1, he complains that the trial court erred in its failure to grant a mistrial when the State placed his character in issue, although he had not done so, by the solicitor's asking a witness for the State the following question: 'Lieutenant Cox, are you acquainted with the general reputation and character of Robert E. Stanley in the community where he lives?' In approving this ground of the motion for a new trial, the trial court appends the following note:
'The recital of facts contained in the foregoing amendment to and of the original motion for a new trial is hereby approved as true and correct and all of the grounds of the amendment are approved; and the amendment is hereby allowed and ordered filed as a part of the record in said case.
'With reference to ground 1 of the said amendment the court certifies that during the progress of the trial while Lt. W. M. Cox was testifying as a witness for the State certain questions were asked and the following colloquy occurred between counsel for the State and counsel for the defendant and the court to wit: 'Lieutenant Cox, are you acquainted with the general reputation and character of Robert E. Stanley in the community in which he lives?' Mr. Spence: The Court: 'I think the statement was that he had never been convicted of any crime involving moral turpitude?' Mr. Spence: 'That is right.' The Court: 'Something of that kind.' Mr. Spence: 'I made the statement to the jury, I put them on notice he had never been convicted of a burglary or of any other crime involving moral turpitude.' The Court: Mr. Luck: 'I understood Mr. Spence to say yesterday that he put his character in issue.' The Court: 'Wait a minute now, let the jury go to the jury room.'' The jury retired from the courtroom. Mr. Spence: "That was the statement I made. I very carefully avoided putting his character in issue, I made no reference to it whatsoever.' The Court: 'He didn't say he is a man of good character, he says he has never been convicted of burglary or something else.' Mr. Spence: 'Larceny or any crime involving moral turpitude.' The Court: Mr. Spence: 'That is right.' The Court: ...
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...to couch her cross-examination of appellant in terms of prior "charges and convictions" for nonsupport. See Stanley v. State, 94 Ga.App. 737, 96 S.E.2d 195 (1956). The trial court should have taken some corrective action after appellant's motion for mistrial was made and it was error not to......
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