Wimbish v. State

• Decision Date: 16 May 1892
• Citation: 15 S.E. 325,89 Ga. 294
• Parties: WIMBISH v. STATE.
• Court: Georgia Supreme Court

15 S.E. 325

89 Ga. 294

WIMBISH v. STATE.

Supreme Court of Georgia

May 16, 1892

Syllabus by the Court.

1. The ownership of personal property, in an indictment for larceny may be laid in a bailee having possession of the property when it was stolen, though the bailment was gratuitous. A like description of ownership of personal property mentioned in an indictment for burglary is sufficient.

2. A witness who is not an expert is incompetent to testify to the identify of handwriting, if his opinion is founded wholly upon a comparison of a signature which he knows to be genuine with the one which is in question. It makes no difference that he saw the genuine signature executed, unless he also testifies that, by that means or some other, he knows or would recognize the handwriting of the person who executed it. Code, § 3839.

3. The court erred in not granting a new trial.

Error from superior court, Fulton county; R. H. CLARK, Judge.

Indictment against Scott Wimbish for burglary. Verdict of guilty. New trial denied, and judgment entered. Defendant brings error. Reversed.

A witness who is not an expert is incompetent to testify to the identity of handwriting, if his opinion is founded wholly upon a comparison of a signature which he knows to be genuine with the one which is in question; and it makes no difference that he saw the genuine signature executed, unless he also testifies that by that means or some other, he knows or would recognize the handwriting of the person who executed it, as required by Code, § 3839.

The following is the official report:

The indictment charged Wimbish with burglary, in breaking and entering the barroom of Marshall, with intent to steal, and after breaking and entering, stealing therefrom some money, a pistol, and a lot of cigars and whisky, the property of Marshall, on August 21, 1891. The offense was alleged to have been committed in Fulton county. There was a verdict of guilty, and, defendant's motion for new trial being overruled, he excepted. The motion contained the general grounds that the verdict was contrary to law, evidence, etc. Also that the court erred in admitting, over defendant's objection, the following evidence of Marshall: "I discovered that the rear of the store had been broken into and that the pistol, the property of Mr. Pelot, was taken out of the storehouse. It was left there with me, in my charge. Left it there for me to sell, if I could." Defendant objected to the testimony about the pistol belonging to Pelot, as there was no accusation in the bill of indictment about a pistol belonging to Pelot having been stolen. To this the court replied: "He was the bailee of it. Objection overruled." It was alleged that this was error, because of the above objection, and because the court held Marshall to be a bailee, he being no bailee, nor such bailee as had an indictable interest in said pistol; also because the court erred in not striking out the testimony of the witness Marshall set out in the ground above, when defendant renewed his objection thereto; and the court, for the objections and reasons given in the last ground above, also erred in admitting, over defendant's objection, the following evidence of Marshall: "How came Pelot to leave his pistol with me? A friend of mine asked me to get him one; and I asked Pelot if he had one, and he said he did, and left it with me to sell it. Wasn't any mention made about what I was to receive when I sold it. I was to pay nothing to keep it. Mr. Pelot had a right to come and take it away. Q. You were acting as Pelot's agent? A. I was merely put in charge." Because the court, while the witness Pelot was being examined, admitted and permitted the following, over defendant's objection: "Comparing those two signatures, would you say it was the same handwriting?" Defendant's counsel objected, as the witness was not an expert. By the Court: "He can give his opinion based upon the facts." Defendant's counsel: "As I understand the law, the witnesses give the facts and the jury the opinion." By the Court: "This card he got from a boy who came out of the cell,--the cell with Scott; and then, with a view to see if he was the writer of it, he got him to write his name. Now, he is asked to testify, having seen him write, if it is the same handwriting." Defendant's counsel renewed the objection, and the objection was overruled. This was alleged to be error because the court ruled that the witness, not being an expert, could give his opinion based upon the facts, that is, upon a comparison of signatures; and because the court expressed an opinion, as well as a ruling in the language of the court above quoted, there being no such evidence or evidence of such facts, nor any evidence that the witness had seen defendant write. In a note to this ground the court states that what was said was simply a ruling by the court, based on what had been testified and in explanation to counsel. As to this ground of the motion the following appeared: Pelot, who was a policeman, testified: "I have seen that before, [the piece of paper.] A negro boy locked up in the cell with Wimbish on a charge of being drunk had it. When he came out he offered that note to me. I took the note, and went back to the station house, and asked him [Wimbish] if he could write. He told me he could, and I asked him to write his name, and gave him this piece of paper, [exhibiting another paper,] and he wrote his name on there, and I compared his name with the name on the back, and asked him if he would deny the note. He tucked his head down, and walked back into the cell." Pelot was then asked...