Opinion
33920.
DECIDED JANUARY 21, 1952.
Certiorari; from Fulton Superior Court — Judge Moore. October 15, 1951.
Walter A. Smith, for plaintiff in error.
Paul Webb, Solicitor-General, John I. Kelley, Solicitor, B. B. Zellars, C. O. Murphy, contra.
1. It is the province of counsel to comment upon facts in evidence and to draw deductions therefrom in such manner as to present the case for the side he represents in its light most favorable to his case, and this right should not be unduly infringed, so long as counsel does not attempt to introduce into his argument facts not supported by the evidence.
2. ( a) On the trial of a misdemeanor the State is not restricted to proving that the offense was committed on the date alleged but may prove that it was committed at any time within the statute of limitations, where the accusation does not specifically limit itself to a particular date and transaction to the exclusion of all others, and conviction under such accusation is a bar to another prosecution based on facts which would have been sufficient, if proved, to have sustained a conviction under the first accusation.
( b) The rule of law that the testimony of an accomplice is insufficient of itself to form the basis of a conviction applies only in felony cases. Code, § 38-121. In misdemeanors, all jointly taking part in the enterprise are principals, and this rule has no application to such cases.
DECIDED JANUARY 21, 1952.
Nathaniel Bell was tried and convicted in the Criminal Court of Fulton County of soliciting for the purpose of prostitution. One Helen Davis testified that she had lived in Atlanta since November, 1950; that she had stayed at the hotel in which the defendant worked as a porter for a period of two weeks; that during this time she had an agreement with the defendant as a result of which he made "dates" for her; that she filled these dates with men in the hotel for a price of $10 and that she turned over to the defendant 40% of the proceeds so obtained; that the defendant thereafter told her about a Mrs. Johnson, who had an apartment in a house where he also worked part time as janitor; that she went to Mrs. Johnson and continued to practice prostitution at that place; that she also continued to go to the hotel upon word of the defendant but not so often; that on the night of January 1, 1951, she went to the hotel shortly before midnight, entering through the side entrance, and went to the room of a named witness; that she did not fill a date that night, although she went to the room for the purpose; that as she came out she encountered a police officer whom she told that the defendant had sent her to the room, but actually the defendant had not sent her on that night. The witness corroborated the fact that she had come into his room expecting to fill a date and he had sent her away; he also testified that he had previously requested the defendant to send him a woman, but the defendant had said at that time that he was unable to do so. The girl in question had been unknown to him.
A police officer testified to following the girl to the hotel, and further testified that after she emerged from the hotel room "we talked to the girl for a matter of a few minutes and at that time in the presence of Nathaniel Bell she stated to us she had gone into this room at his direction and filled a date with a man who was a resident of the hotel; at that time Bell told his boss, the manager of the hotel, that he had called the girl there to fill a date with this man." The defendant denied that he had solicited for prostitution, and offered witnesses as to his good character. The State thereafter offered testimony as to his bad character. The jury returned a verdict of guilty, following which the defendant petitioned the Superior Court of Fulton County for the writ of certiorari, which was denied, and the exception is to that judgment.
1. Error is assigned in grounds (d), (e) and (f) of the petition for certiorari on the failure of the court to declare a mistrial, rebuke the solicitor, or instruct the jury to disregard the following statement made by him to the jury: "His reputation had been good until six months ago, but was not now since he had been fooling around this lewd house with this Johnson woman."
It appears that this remark was based on the testimony of one witness that the Johnson woman ran a house of prostitution and the testimony of another that the defendant stayed in her apartment for periods of time and drank liquor with her. It is the province of counsel to comment upon facts in evidence, and to draw deductions therefrom in such manner as to present the case for the side he represents in its light most favorable to his case, and this right should not be unduly infringed, so long as counsel does not attempt to introduce into his argument facts not supported by the evidence. Mitchum v. State, 11 Ga. 615, 631. The statement that the defendant stayed in the Johnson apartment and drank with her was objected to at the time the testimony as offered and the objection overruled. There is no assignment of error on this ruling of the court, as a result of which the initial propriety of the testimony is not reviewable by this court. This being so, the testimony was properly in evidence and there was no error in allowing the solicitor-general to comment thereon. These objections are without merit.
2. As to the general grounds, it is contended by counsel for the defendant (a) that no crime was proved on the date alleged in the indictment, and (b) that the testimony of the female witness, an accomplice, is not corroborated and is therefore insufficient to form the basis of a conviction. As to the first objection, the witness testified that she had been in the City of Atlanta less than two years, and during that time had filled numerous dates for the defendant on a commission basis. On the trial of a misdemeanor, the case may be made out by proof that the accused committed the act which constitutes the offense charged at any time within two years previous to the return of the indictment. Reynolds v. State, 114 Ga. 265 ( 40 S.E. 234). Such conviction, of course, would be a bar to another prosecution for the same offense within the statute of limitations covered by the first accusation. Webb v. State, 13 Ga. App. 733 (1) ( 80 S.E. 14); Gully v. State, 116 Ga. 527 ( 42 S.E. 790).
As to the second objection, the rule of law that the testimony of an accomplice is insufficient of itself to form the basis of a conviction applies only in felony cases. Code, § 38-121. In misdemeanors, all jointly taking part in the enterprise are principals, and this rule has no application to such cases. Branch v. State, 46 Ga. App. 66 ( 166 S.E. 685); Carson v. State, 37 Ga. App. 100 ( 138 S.E. 920).
The verdict was supported by the evidence, and the overruling of the petition for certiorari was not error for any reason assigned.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.