Belt v. State , 1897 Ga. LEXIS 348 ( 1897 )

Fish, J.

The accused, C. T. Belt, was convicted of the offense of larceny after a trust; and his motion for a new trial being overruled, he excepted.

1. It was not error for the trial judge to charge section 191 of the Penal Code as the law applicable to the case, as it was decided in Cody v. State, 100 Ga. 105, that the words “any other bailee,” as used in such section, properly construed, mean any bailee, whether he be of the classes "enumerated or not, with whom any money or any other thing of value may be intrusted or deposited, and that what-was said to the contrary by Lumpkin, J., in Sanders v. State, 86 Ga. 717, was obiter.

2. Nor was there error in refusing to allow the accused to introduce in evidence the original declaration and the judgment thereon for the plaintiff, in an action by the prosecutrix against the accused, in the county court, for the recovery of the value of the bonds alleged to have been converted by him. Section 5211 of the Civil Code provides that: “The certificate or attestation of any public officer, either of this State or any county thereof, shall give sufficient .validity or authenticity to any copy or transcript of any record, document, paper of file, or other matter or thing in their respective offices, or pertaining thereto, to admit the same in evidence in any court of this State.” And section 5212 says: “Such exemplifications shall be primary evidence as to all records or other things required by law to remain in such offices, but only secondary evidence as to such documents as by law properly remain in the custody of the party.” The declaration offered in evidence was a paper of file in the office of the clerk of the county court and required by law to be kept there. The judgment founded on the declaration was of record in such court. Therefore, according to the sections of the code above quoted, properly certified copies of such declaration and judgment were primary evidence, that is, the best evidence that the nature of the case admitted of; such evidence as was required in the first instance, and which must have been inaccessible to the diligence of the party before any secondary evidence could have been admitted. The original declaration and judgment were only secondary evidence and were not admissible. Bigham v. Coleman, 71 Ga. 176; Bowden v. Taylor, 81 6a. 199; Blount v. Bourne, 82 Ga. 346. If the evidence offered was inadmissible, it does not matter upon what ground it was excluded.

3, 4. The correctness of the conclusions stated in the third and fourth headnotes is sufficiently obvious without further elaboration. See Thompson v. Thompson, 77 Ga. 692; Metropolitan Street R. R. Co. v. Johnson, 90 Ga. 500.

5, 6. Counsel for plaintiff in error earnestly contended that the trial judge erred in refusing to grant a new trial on account of the newly discovered evidence of Sharp and Davis, who made affidavits that the prosecutrix had told them, long before the indictment was found, that she had loaned the bonds to the accused for him to borrow money on. The rule that statements or admissions made by a party to the record are admissible against himself, does not apply so as to make these alleged statements of the prosecutrix competent, original evidence for the accused. Ratteree v. State, 53 Ga. 573; Gillett on Indirect and Collateral Evidence, §229, citing 12 Allen, 535, and 38 La. Ann. 381. If the proper foundation had been laid, however, these alleged contradictory statements of the prosecutrix would have been admissible for the purpose of impeaching her as a witness in the case. And while the newly discovered evidence was merely of' an impeaching character, yet we think the ground of the motion for a new trial based thereon is, in view of what is above laid down, entitled to some consideration in determining whether or not the accused should have another hearing.

Judgment reversed.

All the Justices concurring.