Fountain v. McCallum , 194 Ga. 269 ( 1942 )

1. That the court charged the jury to look to the evidence to determine the issues involved, the judge elsewhere in his charge correctly instructing the jury as to what were the issues raised by the pleadings, and failed, without request, to instruct them that on the issue of forgery they could consider the signatures written by the plaintiff six times in the presence of the jury by way of comparing them with the signature to the deed under attack, presents no meritorious complaint.

2. In instructing the jury on the issue of forgery, the judge did not err in charging them that if they found that the plaintiff did not sign the deed or did not authorize any one to sign the deed for her, it would be a forgery; her petition containing an allegation that she neither signed the deed nor authorized any one to sign the same for her, and she testifying as a witness that she neither signed the deed nor authorized any one to do so for her; the complaint being that the judge should have omitted the words. "or did not authorize any one to sign the deed for her."

3. Grounds 5, 6, 7, 8, 19, and 20 urge that the trial court erred in not charging, without request, certain principles of law embodying the contentions of the plaintiff. These grounds show no error, since an examination of the charge as a whole shows that the judge fully, fairly, and correctly charged the jury on the issues submitted to them.

4. Grounds 9, 10, 11, 12, and 15 are to the effect that when the plaintiff tendered in evidence certain tax digests of Coffee County, which were objected to, the court admitted them for the purpose of showing in whose name the property was returned, but for no other purpose. Counsel for the movant stated at the time that he offered them for other purposes, to wit, as illustrating the question as to whose property it was, and as a circumstance illustrating whether the deed under attack was dated at the time it purported to be dated, and also as to whether the deed was a forgery or not. Although admitted only for the purpose above stated, this apparently would permit movant to draw such reasonable deductions therefrom as might be legitimately inferred from the fact that the returns were signed by a particular person, and to present the same to the jury. It does not appear that the client was deprived of any substantial right by the ruling complained of, since such limitation did not prevent the jury from giving consideration to failure of the alleged grantee in the deed to return it, as related to the main question whether the alleged grantor actually executed the deed.

5. Complaint is made in grounds 13 and 16 that the court permitted the witness McCallum to testify that Mrs. Mattie Liles had been in possession of the land in dispute. The basis of the complaint is that it appeared from McCallum's testimony that the only way he knew that Mrs. Liles was in possession was that she had made a deed to it. If it should be conceded that these rulings were erroneous, they present no sufficient reason for the grant of a new trial, since the controlling issue was that of forgery.

6. Ground 17 has as its basis the admission in evidence, over the objection of movant's counsel, of the deed from Mrs. Mattie Smith to Mrs. Rachel Griffin, the objection being that the same was irrelevant because the only question was whether the deed made by Daisy Fountain to Mattie Liles (or Smith) on January 28, 1929, was or was not a forgery. McCallum claimed under Mrs. Griffin, who in turn claimed under Mrs. Smith. When sued for this land he had a right to introduce his muniment of title. In addition to the issue of forgery, McCallum was setting up valuable improvements made in good faith by him under a bona fide claim of title. No error is shown in this ground.

7. Ground 18 complains that over objection of the plaintiff the defendant offered in evidence two deeds to secure debt, one dated February 19, 1929, between Mattie Smith and A. J. McDonald, and the other from Rachel Griffin to A. J. McDonald, dated March 16, 1935, conveying the same land, it being the land involved in the present suit. These were objected to as irrelevant and immaterial, and because they were transactions with which Daisy Fountain had nothing whatever to do. The court admitted them for the purpose of showing good faith. If it be conceded that these deeds were irrelevant and immaterial, the error is not sufficient to require the grant of a new trial.

8. Grounds 21, 22, and 23 complain of certain extracts from the charge on the subject of impeachment of a witness. These grounds have been examined, and it must be held that they present no sufficient reason for the grant of a new trial.

9. Ground 24 is based on an extract from the charge of the court wherein the jury were instructed to determine this case from the evidence, facts and circumstances of the case; "that is, all the oral testimony, documentary evidence introduced by way of depositions — you will consider all the evidence, and determine the issues involved in this case from the evidence under the rules of law which I have given you in charge," etc. The complaint is that the charge excluded from the consideration of the jury the admissions made in open court by the parties, to wit, that Daisy Fountain's mother was appointed guardian for her on November 27, 1931, and that she was appointed guardian for her on and was adjudged sane and an order passed to deliver possession of her property to her on December 16, 1939; and the further admission that the plaintiff and the defendant claim under Mattie Liles; that it excluded the documentary evidence; that it excluded the six signatures made by the plaintiff in open court. The charge was not subject to the criticism so directed.

10. The basis of ground 25 is that the judge charged the jury that if they should find "from the evidence and the facts and circumstances of the case" that the deed in question is not a forgery, McCallum is entitled to recover the premises in dispute. The criticism is of the use of the words "facts and circumstances of the case." This ground of the motion is without merit.

11. The testimony as to declarations made by a party to the cause, which tended to show admissions against her interest, was not inadmissible merely because such declarations were made by her on a date subsequent to that on which she had been adjudged insane and her property placed in the hands of a guardian, but anterior to the date on which an order was passed declaring that her sanity had been restored.

12. That the judge, in instructing the jury as to what they might consider in determining where the preponderance of the evidence lies, omitted from the language of the Code, § 38-107, the words "the nature of the facts to which they testified, their intelligence," and also instructed them in this connection that they might consider "their [the witnesses'] bias or prejudice, if any appears, the reasonableness or unreasonableness of their testimony," affords cause for the grant of a new trial.

No. 14195. JULY 15, 1942. Complaint for land was filed by Mrs. Daisy Fountain against J. W. McCallum. In her petition she attacked as a forgery a certain deed under which McCallum claimed title. McCallum denied that the deed was a forgery, and further set up that he bought the property in good faith; and by amendment he alleged certain improvements and sought to have these improvements set off against the value of the land, in the event the plaintiff recovered. The jury found for the defendant. The plaintiff's motion for new trial, on general and special grounds, was overruled, and she excepted.

The vital question in the case is, was the deed from plaintiff to Mattie Smith a forgery? On this issue the evidence was in sharp conflict.

It would unduly extend this opinion to enlarge on each of the several rulings announced in the headnotes. The pronouncements made in headnotes 11 and 12 will, however, be discussed.

(11) Ground 14 complains of the testimony of Jim Smith, Mae Worth, and J. A. Griffin, as to declarations against her interest made by Daisy Fountain. The plaintiff moved to exclude the testimony of each witness, on the ground that it was irrelevant, immaterial, and incompetent, since it was something they testified she said after the time that she was adjudged insane and before the order of restoration of her competency to handle her estate and declaring her sanity restored. In the testimony of Jim Smith it does not appear when Daisy Fountain made the statement. Mae Worth testified that the statements were made "fall before last." J. A. Griffin placed it as "in 1936, I think it was." This ground further recites that it was admitted that Daisy Fountain was adjudged insane and a guardian was appointed for her property in 1931, and that an order was not taken restoring her sanity and putting her back in possession and control of her property until December 16, 1939. In passing on this objection the judge stated: "The court is of the opinion that under the section of the Code which has been cited, that any of the contracts or anything else during the pendency of the lunacy, after they have been adjudged, of course, that it is void; but I think it is rather a question for the jury to determine as to whether she knew what she was talking about when she made the statements, if she made the statements. I think it is a question for the jury to determine as to whether or not she knew what she was talking about at the time she made those statements, and the statements might be admissible as circumstance to show whether or not she knew at the time what she was talking about." We take this to be a ruling of the court in effect refusing to sustain the motion to exclude the testimony.

One of the exceptions to the hearsay rule is that generally evidence of declarations against interest by parties to the record may be received. One of the principles applicable thereto is that the declarant must at least not lack the usual testimonial qualifications that would be required of him or her if testifying on the stand. 6 Wigmore on Evidence (3d ed.), § 1751. The objection here raised is in effect that the declarant, if herself a witness, did not possess the necessary qualification to testify, since the declarations were made after the time that she was adjudged insane and before the order was entered declaring that her sanity had been restored. Whether or not, in view of this objection, the testimony of the witness as to declarations should have been excluded depends upon whether or not at the time the declarations were made the declarant herself would have been a competent witness. "The question being whether the person is trustworthy as a witness, the law now asks whether in each case the derangement or defect is such as to make the person highly untrustworthy as a witness; it no longer excludes absolutely." The italicized words so appear in the text to 2 Wigmore on Evidence (3d ed.), § 492. The same author in § 497 states that "the capacity of the person offered as a witness is presumed. . . But it is generally accepted that the fact that the witness is, at the time of testifying, or was shortly beforehand, a lawful inmate of an asylum for mental disease or defect, or an adjudged lunatic or defective, makes it necessary that his capacity should be examined into and an express finding appear." The authorities cited by the author in support of his statement that it is necessary that the witness's capacity should be examined into, and an express finding appear, have been examined; and few of them relate to a case where the witness, having once been committed to an insane asylum, is no longer confined therein, although there has been no order declaring the sanity restored. It expressly appears that when one of these declarations is alleged to have been made by her she was at the home of herself and her mother, and that they were talking about financial affairs. Another of the alleged declarations was made at the home of a witness; and another was made by her during the time the witness was purchasing some fish from her. The setting of each of the conversations was given, and the conversation itself repeated somewhat in detail.

The Code, § 38-1607, declares, "Persons who have not the use of reason, as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, shall be incompetent witnesses." Formby v. Wood, 19 Ga. 581, was a case in which a person who by his guardian had sued as a lunatic entered an appeal. The case having been decided against the guardian, the lunatic came in and entered an appeal, and in doing so he filed a pauper affidavit. The question came up afterwards on a motion to dismiss the appeal on the ground that the affidavit had been made by the lunatic and appeal entered by him instead of the guardian. This court held that prima facie the lunatic was competent to take the oath and to enter the appeal, and the motion to dismiss it was denied. In the opinion in that case attention was called to the fact that the affidavit was made before a judge of the inferior court, and it was received by the clerk of the superior court, and that it was to be presumed that this judge would not have administered the oath, or that this clerk would not have received it if the man making it were insane; and further, that some inference in favor of sanity may be drawn from the nature of the very act imputed as the act of an insane man — the affidavit.Formby v. Wood therefore may be distinguished from the instant case, but it is nevertheless a ruling that there was a presumption that he acted during a lucid interval; for we find this in the opinion: "This being so, the question is, was the affidavit of Hunt made during a period of sanity? And we think that the prima facie presumption to be made is, that it was." InMayor c. of Gainesville v. Caldwell, 81 Ga. 76 (7 S.E. 99), the interrogatories of one Turner were offered, and it was alleged that the trial court erred in not reading or hearing read the interrogatories of certain other persons and the exemplification of the record of the South Carolina Lunatic Asylum, which were offered to show that Turner, the witness, was insane at the time his interrogatories were executed. The position of counsel was that the judge should have heard the testimony as to the competency of Turner, but that instead he allowed the interrogatories and exemplification to be read to the jury. This court approved that ruling, and, relying upon the case of Formby v. Wood, supra, said: "He having been examined under a commission issuing from the court, the presumption is that the commissioners would not have examined him unless he had been sane at the time of the examination." This reference is made to the case of Mayor c. of Gainesville v. Caldwell, because it too dealt with a presumption, although it may be distinguished for reasons similar to that which differentiates Formby v.Wood, supra, from the case at bar. In Conoway v. State,171 Ga. 782 (156 S.E. 664), it was ruled: "The fact that there is evidence that a person was insane, or that she had previously been adjudged insane and is now in the State Sanitarium, does not of necessity render her incompetent as a witness. The evidence may show that the lunatic has lucid intervals; and it is for the jury to say whether the occurrence to which the witness testified occurred in a lucid interval, and also for their determination whether or not the witness at the time of testifying, though formerly adjudged a lunatic, is sane at the time of testifying. The question of the competency of the witness in this case was for the jury, and they were correctly instructed in the charge of the court." The case from which the above is quoted is in principle authority for the proposition that the declarations made by Mrs. Fountain were not necessarily inadmissible merely because she had been previously adjudged insane, and the declarations were made when the effect of that judgment was still in operation. It is true that in that case the judge instructed the jury properly that the question of her competency as a witness was for them to determine. In the instant case complaint is not made that the judge failed to charge the jury along this line, but that he admitted the declaration. The mere fact that the declarant had been adjudged insane and placed in a lunatic asylum previously to the time that she is alleged to have been the declarant, she at that time not being in the asylum, was not in itself a reason why the testimony should have been excluded. To have sustained this motion would have been the equivalent of ruling that under no circumstances could declarations be received of a person in like situation, without first submitting proof that she was sane at the time she made them. There was nothing in the testimony as delivered by the witnesses to render evidence of her declaration prima facie inadmissible. The judge ruled correctly when he admitted the testimony, and that is the only ruling complained of in that ground of the motion now being considered. There was no presumption that the declarant was so bereft of reason as to forbid the reception of evidence concerning her declarations, although it was admitted that before the making thereof she had been adjudged insane and committed to an asylum. This ground of the motion presents no ground for reversal.

(12) It has a number of times been ruled by this court and the Court of Appeals that when a trial judge undertakes to state to the jury the principles of the Code, § 38-107, as to how the preponderance of evidence should be determined, it is his duty to instruct the jury fully and completely with respect thereto, so far as relevant to the case on trial; and that omission so to do is erroneous. See Renfroe v. Hamilton, 193 Ga. 194, 197 (17 S.E.2d 709), and cit. The Code section above cited states that one of the things the jury may consider is the intelligence of the witnesses, and also the nature of the facts to which they testified. In stating the various factors mentioned in this Code section the judge omitted the reference to these two matters which they might take into consideration. In so doing he erred. We are not to be understood as holding that when the judge undertakes to give the contents of this section in charge, in every case he must do so in haec verba, or that in every instance the entire section should be charged. In the instant case the evidence was in sharp conflict. One of the witnesses, the plaintiff, had at one time been adjudged insane. In addition to that, other witnesses testified as to declarations made by her after she had left the lunatic asylum but while still laboring under the judgment which sent her there, as pointed out in the previous division of this opinion. In this kind of a case we think it unfortunate that the judge omitted any reference to the intelligence of the witnesses, or indeed that he did not add the other omitted sentence, to wit, "the nature of the facts to which they testified." Viewing the case as a whole, we are unable to say that the error therein pointed out was harmless. On account of this error a new trial should be granted.

Judgment reversed. All the Justices concur.

ATKINSON, P. J., and DUCKWORTH, J., concur specially.