Hinkle v. State , 1929 Ga. LEXIS 237 ( 1929 )

Beck, P. J.

1. An indictment charging the accused with wrongfully, fraudulently, and privately taking, stealing, and carrying away, with intent to steal the same, one Chevrolet Coach automobile of the value of $745.00, the property of A, and concluding with the usual language, “contrary to the laws of said State,” etc., is not open to attack by demurrer upon the ground that the allegations therein do not charge the defendant with any offense under the law.

2. Other grounds of demurrer were properly overruled, under the rulings in the case of Tribble v. State, 168 Ga. 699.

3. Under the rulings made in the case referred to, the court did not err in admitting evidence of previous conviction.

4. Error is assigned upon the admission in evidence of the following testimony given by a witness for the State: “As to why I asked the officer to arrest him, it was just because I thought he was the fellow, and some other fellow had told me that he was the man that got the automobile.” The admission of this evidence was not error, for the reason that it appears as a part of the evidence given by this witness for the State upon cross-examination and was apparently in response to a question propounded on cross-examination by counsel for the defendant; and it is nowhere stated that it was not in response to a question so propounded to the witness. Consequently, upon a motion to strike that part of the evidence referred to, the court did not err in ruling that the evidence would be allowed, “not as to the truth of whether he did or did not steal the automobile, but as the reason for having him arrested.”

No. 7010. July 11, 1929. Audley M. Lane and M. E. Meeks, for plaintiff in error. John A. Boykin, solicitor-general, and J. W. LeCraw, contra.

5. Under the decision in Tribble v. State, supra, the court did not err in failing to instruct the jury that in the event they found the defendant guilty of the charge for which he was on trial, and they desired to and did recommend that he be punished as for a misdemeanor, it would be in the discretion of the judge as to whether or not he would approve or reject the recommendation.

Judgment affirmed.

All the Justices concur.