Strickland v. State

• Citation: 69 S.E. 313,8 Ga.App. 421
• Decision Date: 11 November 1910
• Docket Number: (No. 2,892.)
• Parties: STRICKLAND v. STATE.
• Court: United States Court of Appeals (Georgia)

69 S.E. 313

(8 Ga.App. 421)

STRICKLAND

v.STATE.

(No. 2, 892.)

Court of Appeals of Georgia.

Nov. 11, 1910.

(Syllabus by the Court.)

1. Criminal Law (§ 1064 1/2^*)—Writ of Error—Motion for New Trial.

Although grounds of a motion for new trial are not formally approved, they are to be considered, when it is certified in the bill of exceptions that the statements of fact contained in them were approved as true.

[Ed. Note.—For other cases, see Criminal Law. Cent. Dig. §§ 2676, 2887, 2948; Dec. Dig. § 1064 1/2.*]

2. Criminal Law (§§ 419, 420^2-*)—Evidence-Hearsay.

It was error to admit hearsay to prove the guilt of the accused, especially when the statement of the witness inculpatory of the defendant was not a part of the res gestae of the transaction, nor made in the presence of the defendant.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 973; Dec. Dig. §§ 419, 420.*]

3. Criminal Law (§§ 763, 764*)—Trial—Instructions—Weight op Evidence.

An instruction of the court to the jury, which intimates that a party has made an unsuccessful effort to establish a specified contention, when his contention is different, necessarily depreciates the weight of the testimony used for that purpose, and is error.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748; Dec. Dig. §§ 763, 764.*]

4. Criminal Law (§ 814*) — Instructions — Charge Not Warranted by Evidence.

An instruction not warranted by the evidence in the case on trial, and upon a point as to which no evidence was introduced, is erroneous.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1979; Dec. Dig. § 814.*]

Error from City Court of Quitman; J. G. McCall, Judge.

Turner Strickland was convicted of crime, and he brings error. Reversed.

J. D. Wade, G. C. Edmondson, and Jas. Humphries, for plaintiff in error.

S. M. Turner and B. C. Gardner, for defendant in error.

RUSSELL, J. The defendant was convicted of a misdemeanor, and excepts to the judgment overruling his motion for new trial. In addition to the general grounds of the motion for a new trial, the movant filed in the court below an amendment containing several additional grounds.

1. It appears from the record that the trial judge did not sign the formal order verifying the recitals of fact in the amendment and approving its several grounds. For this reason it is insisted by counsel for the defendant in error that the amended grounds of the motion for a new trial cannot be considered. This would undoubtedly be true, if nothing further appeared; for it is a universal rule that a reviewing court cannot consider assignments of error, or the statements of fact therein contained, which have not been approved by the trial court. In ibis case, however, it appears from the recitals of the bill of exceptions that the judge did approve the several grounds of the amendment and verified the recitals of fact therein contained. It is true the judge did not sign the order, which had been prepared for his signature, approving the several grounds of the amended motion. The mere failure to affix his signature was perhaps an oversight on his part; for, according to the statement of the bill of exceptions, which he certifies to be true, he did approve the recitals of fact contained in the amended motion, and considered them and passed upon them. It was in the power of the judge to have approved the grounds of the amendment to the motion at any time before the bill of exceptions was finally certified, even though in the meantime he had passed upon a motion for a new trial. Veal v. State, 7 Ga. App. 729(2), 67 S. E. 1054; Georgia Railroad Co. v. Greer, 7 Ga. App. 292 (1), 60 S. E. 961; Milton v. Savannah, 121 Ga. 89, 48 S. E. 684; Baird v. Bate, 114 Ga. 117, 39 S. E. 943. The decisions in these cases do not specifically relate to the approval of the grounds of an amendment to the motion for a new trial, but to the brief of evidence and to affidavits filed in support of the motion; but the general principle is the same. While the amended grounds of a motion for a new trial, if not approved, cannot be considered by this court, evidence of the judge's approval may be found in the recitals of a duly certified bill of exceptions.

2. Complaint is made that the judge erred in admitting the testimony of one Albert Folsom, who testified that he was present at the cream supper, and that Josh Hendry gave him a drink of whisky and stated that he (Hendry) bought the whisky from the defendant, Turner Strickland. This testimony was objected to at the time as being hearsay, and not a part of the res gestae, and as being inadmissible, because the defendant was not present at the time that Hendry made the statement and had no opportunity of denying it. We think the objection is well taken, and should have been...