Bishop v. State , 18 Ga. App. 714 ( 1916 )

Wade, C. J.

1. The general grounds of the motion for a new trial are without merit, since there was direct evidence, which the jury found to be credible, sufficient to authorize the verdict. .

2. In the 4th and 5th grounds it is complained that the “verdict is decidedly contrary to the evidence,” and “is not supported by the evidence,” for the reason that only one witness testified that he bought whisky from the defendant, and that witness “impeached his own testimony;” that this witness testified “in the next ease called for trial, the same day and the same afternoon,” that he had previously sworn falsely before the grand jury in that case (not the ease now under consideration); and that, the sole witness for the State being impeached, a verdict of guilty against the defendant ought not to stand upon his testimony. “While section 5884 of the Civil Code (1910) declares that, ‘if a witness swears wilfully and knowingly falsely, his testimony ought to be disregarded entirely, unless corroborated by circumstances, or other unimpeached evidence/ yet the jury may credit even an impeached witness without corroboration. The whole question of the credibility of witnesses is wisely left to the jury under any and all circumstances, and, though Ananias and Sapphira spoke again, the law would not strike them dead, but would leave their testimony to be weighed and accepted or rejected by the jury.” Brown v. State, 10 Ga. App. 50 (72 S. E. 537). See, on the general subject, Rice v. Eatonton, 15 Ga. App. 505, 508 (83 S. E. 868). The following rulings have also been made on this subject: “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 (73 S. E. 623). “The credibility of witnesses is a matter so entirely for the jury that the question as to whether a witness has or has not been successfully impeached is a matter for their exclusive determination.” Smith v. State, 17 Ga. App. 298 (86 S. E. 660). “Even though a witness may admit having previously sworn falsely regarding the facts and circumstances attendant upon an occurrence, he may still be believed by the jury.” Brown v. State, 17 Ga. App. 402 (87 S. E. 155). And see Ware v. State, ante, 107.

3. There is no merit in the ground of the motion for a new trial which assigns error because of the failure by the court to direct a verdict in favor of the defendant. It is never error to refuse to direct a verdict.

4. There was no error in admitting testimony, over objection of counsel for the defendant, to the effect that the defendant’s house was searched and several bottles of whisky were found therein, notwithstanding the fact that the whisky itself was not produced in court. Proof as to the possession of whisky by the defendant at or about the time of the alleged sale tended to corroborate the direct evidence showing a sale, and was not irrelevant. Even if the testimony touching the arrest of the accused and the seizure of whisky (which the witness understood was to be used in connection with a case not then on trial) was irrelevant,'because the time when the whisky was found in the defendant’s possession' was- not definitely shown, the error, if any, in admitting this testimony was sufficiently cured by its withdrawal from the jury by the charge of the court.

5. The 10th ground of the motion for a new trial alleges that a certain excerpt from the charge of the court (the part in which the court withdrew from the consideration of the jury the testimony referred to above) was erroneous, but fails to point out in what particular the charge complained of was erroneous, and it does not appear that the accused could have been harmed by it.

6. In the 11th ground of the amendment to the motion for a new trial it is contended that the verdict should be set aside “because the defendant did not see the witnesses testifying against him, in that the defendant was blind, and further for the reason that defendant’s physical disability, in his being blind, placed him in position that he was denied a fair trial for the reason that defendant was not on equality with, the witnesses testifying against defendant, in that defendant could not procure evidence to meet the contentions of the witnesses for the State.” No comment on this ground of the motion is necessary, further than to say that if it is meritorious, the blind would ordinarily be wholly exempt from punishment for the violation of any penal statute. Pursuing the idea of the plaintiff in error to its logical result, it would seemingly require not only that the blind defendant be tried by a jury of his peers, all Hind, but perhaps that not only the goddess of justice herself, but the presiding judge and the other court officers officiating in the trial, should labor under the same affliction! A plea of mental blindness, or insanity, may sometimes avail, but a plea of physical blindness, to avoid conviction for crime, would be at least novel; and besides, no such plea was filed in this case.

Judgment affirmed.