Opinion
35262.
DECIDED SEPTEMBER 27, 1954.
Assault and battery. Before Judge Shaw. Fulton Superior Court. April 1, 1954.
Noah J. Stone, Robert T. Efurd, for plaintiff in error.
Paul Webb, Solicitor-General, John I. Kelley, Solicitor, C. O. Murphy, contra.
The court did not err in overruling and dismissing the certiorari, for the reasons set forth in the body of the opinion.
DECIDED SEPTEMBER 27, 1954.
R. D. Sechler (whom we shall call the defendant) was convicted in the Criminal Court of Fulton County on an accusation alleging that he did make an assault upon the person of Paul Price and then and there did unlawfully beat him. The jury returned a verdict of guilty. The defendant filed a motion for new trial, which the trial court denied. The defendant applied for a writ of certiorari, which, upon the hearing, the court overruled and dismissed. On this judgment the defendant assigns error.
Grounds 1, 2, and 3 of the application for certiorari state the history of the case and allege the giving of a bond for the defendant's release from custody. Paragraph 4 alleges that the defendant did not have a fair trial and was wrongfully and illegally convicted, and that he is dissatisfied with the sentence. Paragraph 5 alleges that within the time prescribed by law the defendant made application for certiorari. Paragraph 6 alleges that a transcript of the evidence is attached. Paragraph 7 alleges that the charge of the court is attached. Paragraph 8 sets forth certain evidence of a witness, Paul Price. Paragraph 9 sets forth and complains of certain evidence of Carl A. Hightower, Jr., a witness for the defendant, which evidence was elicited by the State on cross-examination and admitted over the objections of the defendant. Paragraph 10 alleges that the accusation against the defendant was that he committed the offense of assault and battery upon Paul Price. Price admitted on direct examination and on cross-examination that he had been convicted of larceny and had also been convicted of false swearing on two occasions, had received sentences therefor, and had served the sentences; and further that, on this question of impeachment of the witness Price, the court charged as follows:
"I charge you, gentlemen, further, that to impeach a witness is to prove to the satisfaction of the jury that such witness is not worthy of belief. One of the methods known by law for impeaching a witness is by proof that the witness has been convicted of a felony or crime involving moral turpitude; another is by proof of contradictory statements previously made by such witness as to matters material to his testimony, and to the case; another is by disproving the facts testified to by such witness. If an effort has been made to impeach a witness, it is a question for the jury to determine whether or not such effort has been successful. If a witness should be successfully impeached, that is to say, if it should be shown to the satisfaction of the jury that such witness is not worthy of belief, then and in that event, it would be the duty of the jury to disregard the testimony of such witness, unless same is corroborated by other credible and unimpeached testimony, either direct or circumstantial. The jury being the exclusive judges as to the credibility of the witnesses, it is for them to determine the credit that shall be given to the witnesses."
The petition for certiorari complains that the above-quoted excerpt from the charge was not adjusted to the established facts of the case.
Paragraph 11 of the petition for certiorari assigns error on the following excerpt from the charge of the court: "To beat is not necessarily to whip, wound or strike, but includes any unlawful imposition of the hands or arms of one person upon another against the will of the other person, or against the will of the person alleged to have been assaulted." This excerpt is excepted to on the ground that it was not authorized by either the accusation or the evidence.
Paragraph 12 assigns error on the following excerpt from the charge of the court: "It is the contentions of the defendant in this case that he did not commit this alleged offense charged in this accusation and that he is innocent of this charge and he did not strike the alleged victim, the prosecutor in this case, Paul Price, nor did he impose his hands upon him in any way or otherwise touch him." This charge is excepted to as being contrary to law, harmful, and prejudicial in that the use of the words, "did not commit this alleged offense," was an expression of opinion by the court that an offense had been committed.
Paragraph 13 excepts to the verdict of the jury and a sentence of the court as being contrary to law without evidence to support the same and against the greater weight of the evidence.
Paragraph 14 assigns error on the verdict and the sentence, in that, as alleged, the defendant was convicted upon the evidence of a witness who had been convicted of three crimes involving moral turpitude without any corroborating evidence.
Paragraph 15 contains general exceptions to all of the alleged errors above set forth in the petition.
The judge answered the writ of certiorari, and in paragraph 1 of the answer approved paragraphs 1, 2, 3, 6, and 7 of the petition for certiorari. In paragraph 2 the judge stated that paragraph 4 required no action. In paragraph 3 the judge admits the petition complied with all the requirements of law, "but submits the other allegations of paragraph 5 to this court."
Paragraph 4 of the answer states: "Answering paragraph numbered eight (8) respondent approves as true and correct the quoted questions and answers, and the objections and rulings of the court as set forth therein, but avers that movant did not state what he expected the answer of the witness to be. The other parts of said paragraph containing the contentions of the movant require no answer except that respondent points out that the statement made by movant to the effect that: `the objections made by the solicitor as to what transpired in open court of the conversation between the defendant and his counsel in the presence of the solicitor and the judge is not privilege, etc.', is without a basis. In fact, inasmuch as the quoted evidence itself does not show that the alleged conversation was in `open court' or that `it was in the presence of the solicitor and the judge,' thus respondent disapproves this portion of said paragraph."
Paragraph 5 of the answer states: "Answering paragraph numbered nine (9) respondent disapproves same because it is inaccurate in that, as shown by the brief of evidence on page 40 thereof, only two of the several quoted questions and answers contained in said paragraph numbered nine (9) were in fact objected to and the grounds of those two objections were only that the said questions were `irrelevant and immaterial' and there were other questions and evidence adduced of a similar nature which were unobjected to, said two specific questions and the objections being as follows: `Q. What size loans do you make? A. Any size. Mr. Efurd: I object to that as irrelevant and immaterial. The Court: I overrule the objection. Q. A person borrowing $50 from you for six months, how much interest would you charge him? Mr. Efurd: I object to his going into the operation of the company as irrelevant and immaterial to the issues in this case, prolonging it unnecessarily. The Court: I overrule the objection.'
"Respondent approves as true and correct the above-quoted questions, answers, objections and ruling of the court on the subject of paragraph numbered nine (9) — none of the other questions and answers involving the contentions of the movant in said paragraph nine (9) having been objected to by movant, therefore, respondent specifically disapproves said following statement: `The court overruled these objections whereupon the witness, Carl A. Hightower, Jr., testified that if the defendant borrowed $50 for six months he would pay $2.85 interest, insurance on the automobile and life insurance, that $1.00 for investigation fee of his credit, and that the total charges, insurance and interest would be $25 and the company would get back $75 when he borrowed $50 for six months,' for the reason, as stated above, that the other questions not objected to, in fact, elicited said information."
In paragraph 6 the judge approved paragraphs 10, 11, and 12 of the petition for certiorari. Paragraph 7 states that paragraphs 13, 14, and 15 require no answer.
To the answer of the trial judge the defendant duly filed exceptions as follows: "Petitioner excepts to paragraph 7 of said answer which refers to paragraph 13, 14 and 15 by stating they `require no answer' because they are insufficient in law, in that the court should either have verified or denied paragraphs 13, 14, and 15 of said petition; that these paragraphs are assignments of error, and assignments of error not verified by the trial judge cannot be considered, therefore, the court not having either verified or denied said paragraphs as assignments of error in his answer, the same are insufficient and that the trial court should be required to specifically answer said paragraphs. Wherefore, petitioner prays that these exceptions be sustained and the trial court required to answer said paragraphs as provided by law." The judge of the superior court disposed of the exceptions as follows: "The court is of the opinion the answer of the trial judge is sufficient for this court to consider the assignment of error in paragraphs 13, 14, and 15 of the petition for certiorari, therefore these exceptions are overruled."
1. In discussing this case we will follow the pattern as suggested by counsel for the defendant, taking up the assignments of error in the order named in the petition for certiorari.
(a) Attorney Foster, who had represented Price (the one alleged to have been beaten), was put on the stand by the attorneys for the defendant. The question propounded to Foster was what conversation he had as attorney for Price when he was representing Price. The court excluded this testimony on the ground that conversations between the attorney and Price at the time of such conversations were confidential, and therefore inadmissible. Counsel for the defendant in support of this contention cite Code § 38-1605. Counsel also cite Griffin v. Williams, 179 Ga. 175, 178 ( 175 S.E. 449) and Bryan v. Barnett, 205 Ga. 94 (5) ( 52 S.E.2d 613). The authorities cited do not sustain the contentions of the defendant under the record of the instant case. We might here call attention to the answer of the trial judge in response to paragraph 8, which we have hereinabove quoted. It appears from the answer of the trial judge that counsel for the defendant did not state what they expected the answer of the witness to be. The answer of the trial judge went further to the effect that the conversation of the witness with Price was a private conversation. We might state in this connection that the answer of the judge was not traversed, and it is therefore to be considered by this court as true. See, in this connection, Code § 38-1605, cited hereinabove, and Code §§ 38-418 and 38-419. This contention is without merit.
(b) In discussing paragraph 9 of the petition for certiorari, we refer to paragraph 5 of the answer of the trial judge, which we have quoted in full. It appears that the only objection to the evidence with reference to the loan was that it was immaterial and irrelevant. These grounds of objection are not sufficient to reverse the case unless it is shown that harm resulted therefrom. Then too, there is another well-considered principle of law that, where evidence of a similar nature as that objected to is admitted without objection, the immaterially and irrelevancy of such evidence will not operate to reverse the case. The answer of the trial judge on traverse stated that, subsequently to the objection, similar evidence was admitted without objection. Moreover, we cannot see how the defendant could have been harmed by the admission of this testimony. It appears to us from reading this record that the jury were authorized to find that the loan made to Price by a company for which the defendant worked was the very gist of the cause for which the defendant attacked Price. This contention is without merit.
Paragraph 10 of the petition for certiorari complains of an excerpt from the charge of the court regarding impeachment of witnesses. We have quoted this excerpt from the charge hereinabove. The assignments of error are that it is not adjusted to the established facts; that the charge is harmful and prejudicial; that it was not for the jury to determine whether or not impeachment was successful; that the court failed to charge on the point of corroborating evidence. See Ware v. State, 81 Ga. App. 762 ( 59 S.E.2d 753) and Humphreys v. Smith, 133 Ga. 456 (2) ( 66 S.E. 158). The cases of Ware v. State and Humphreys v. Smith do not sustain the contentions of the defendant under the record in this case. We think that the charge of which complaint is made substantially covers the methods of impeachment. The judge charged the jury that, if they found that the witness was unworthy of belief, they could not convict the defendant under such testimony unless such testimony was corroborated. It is a jury question always as to whether or not a witness has been impeached.
Paragraph 11 of the petition for certiorari assigns error on an excerpt from the charge of the court. This excerpt has been quoted hereinabove. It is alleged that this charge was unauthorized by the accusation against the defendant; that there is no evidence to authorize the charge; that the charge was harmful and prejudicial; that this excerpt injected into the case an issue not made by the accusation; and that the excerpt is contrary to law. This assignment of error is without merit.
Paragraph 12 complains of an excerpt from the charge which has been hereinabove quoted. Error is assigned, in that it is contrary to law; that it is harmful and prejudicial, in that the use of the words, "did not commit this alleged offense," was an expression of opinion by the court that an offense had been committed; that the use of the language that the defendant contended that he did not "impose his hand upon Paul Price in any way or otherwise touch him" injected into the case an issue not made by the accusation or by the evidence, and that such was harmful and prejudicial in that it led the jury to believe that the offense could have been committed in some manner other than by striking Price. Certainly this charge in using the words "this alleged offense" as part of the expression, "It is the contention of the defendant in this case that he did not commit this alleged offense," could not be construed in any way as an expression of opinion, and was not error for any reason assigned. There is nothing in Eidson v. State, 66 Ga. App. 765 ( 19 S.E.2d 373) which is inconsistent with our ruling here.
We come next to consider the assignments of error in paragraphs 13, 14, and 15. With the exception of the complaint regarding uncorroborated evidence, these paragraphs complain generally of the ruling and findings of the court, the verdict of the jury, and the sentence of the court as being harmful and prejudicial to the defendant. In the argument of counsel for the defendant on the general grounds, they assume that the witness was impeached. In Powell v. State, 101 Ga. 9, 11 (5b) ( 29 S.E. 309) it is said: "A witness is never impeached, in contemplation of law, until there is a mental conviction, produced upon the mind of the jury by proof, that he is unworthy of credit." See, in this connection, Hardware Mutual Casualty Company v. Mullis, 75 Ga. App. 233 (2) ( 43 S.E.2d 122). In Wright v. State, 45 Ga. App. 517 ( 165 S.E. 326), this court said: "`It is within the power and right of a jury to believe a witness, no matter what effort may have been made to impeach him or what testimony has been presented for that purpose, and even though the witness be not corroborated.' Solomon v. State, 10 Ga. App. 469 (3) ( 73 S.E. 623)." It is thus the established law of this State that a witness is never impeached until the jury considers such witness impeached. It matters not what sort of attempts may be made to impeach a witness, it is still a question for the jury to determine as to whether or not his testimony in a particular case is worthy of credit. In the instant case the jury resolved this question against the defendant. The court fully charged on the question of credibility of witnesses. While we do not think it necessary to comment further to the effect that the evidence as to the general grounds sustains the verdict, we might add a few words regarding corroboration, since considerable argument is advanced by counsel for the defendant to the effect that the evidence of Price was in no way corroborated. We think it was corroborated. The defendant in his statement partially corroborates the witness Price, in several particulars. So does the witness W. D. Dinsmore, who operated a filling station to which Price went. The witness is also corroborated in part by the testimony of City of Atlanta Detective L. L. Hause and also by a city policeman who had accompanied Detective Hause to the point near where the defendant and Price met. We will not go into detail as to the corroborations, as we deem it unnecessary.
(c) The court did not commit error in overruling the exceptions of the defendant to the answer of the trial judge.
The court did not err in overruling and dismissing the certiorari.
Judgment affirmed. Townsend and Carlisle, JJ., concur.