Hunter v. State , 45 Ga. App. 512 ( 1932 )

Luke, J.

J. P. Hunter was charged with committing the offense of abortion on August 8, 1931, in Walker county. The jury returned a verdict of guilty, and the defendant’s motion for a new trial being overruled, he excepted.

It appears from special ground 1 that the State offered in evidence a bill of indictment against the defendant for abortion, returned to the February term of Walker superior court, 1935, “with a verdict of guilty on the back of it, and the sentence of the court.” The objection interposed when it was offered was that it was entirely irrelevant and immaterial and had no probative value. The court’s ruling was as follows: “I will let it in to show the state of mind of the defendant, the question of intent, for the purpose of’illustrating this issue, if it does.”

“Where one is on trial charged with the commission of a crime, proof of a distinct and independent offense is never admissible, unless there is some logical connection between the two, from which it can be said that proof of the one tends to establish the other. To this general rule there are some exceptions; as, when the extraneous crime forms part of the res gesta; or is one of a system of mutually dependent crimes; or is evidence of guilty knowledge; or may bear upon the question of the identity of the accused or articles connected with the offense; or is evidence of prior attempts by the accused to commit the same offense upon the victim as that for which he stands charged; or where the proof of the extraneous crime tends to prove malice, intent, motive, or the like, if such an element enters into the offense charged.” Wilson v. State, 173 Ga. 275 (2), 284 (160 S. E. 319). As sustaining the above rule, the court cited Cawthorn v. State, 119 Ga. 395 (46 S. E. 897); Frank v. State, 141 Ga. 343 (80 S. E. 1016); Williams v. State, 152 Ga. 521 (110 S. E. 286); Coart v. State, 156 Ga. 536 (119 S. E. 723); Booth v. State, 160 Ga. 271, 274 (127 S. E. 733). The opinion of the majority of the court in the famous Frank case, supra, which is a treatise upon the subject under consideration, quotes with approval the following general rule announced by the Court of Appeals of New York in People v. Place, 157 N. Y. 584 (52 N. E. 576) : “It is an elementary principle of law that the commission of one crime is not admissible in evidence upon the trial for another, where its sole purpose is to show that the defendant has been guilty of other crimes, and would, consequently, be more liable to commit the offense charged.” W’e quote also from Moose v. State, 145 Ga. 361 (2) (89 S. E. 335) : “The defendant being on trial for a criminal assault upon his daughter, a child of tender years, the testimony of a witness for the State, an elder sister of the girl upon whom tire alleged assault was made, to the effect that the defendant had threatened the life of the witness during the preceding year, was irrelevant and inadmissible, the threat thus referred to having been made apparently in connection with an assault upon the witness, and relating to the conduct of the defendant in another transaction, and therefore falling within the inhibition contained in the general rule that the conduct of parties in other transactions is irrelevant and inadmissible.” This ruling was followed in Cox v. State, 165 Ga. 145 (139 S. E. 861).

In the case at bar the woman testified that the defendant performed an abortion upon her at a certain time and place, while the defendant stated to the jury that, while he was at said place at said time, he positively did not commit the offense charged, and that the woman accused him falsely in order to extort money from him. The indictment in the present case charges the commission of the act on August 8, 1931, while the indictment introduced in evidence was returned at the February term of Walker superior court, 1925, and related to a charge of abortion committed upon a different woman from the one involved in this case. Evidently the extraneous crime' was no part of the res gestae; nor was evidence of it admissible as being “one of a system of mutually dependent crimes.” The question of “guilty knowledge,” or of “identity,” is not involved in this case. The question here is whether or not the defendant committed the offense, and there was no occasion to admit the evidence to show “malice, intent, motive, or the like.” Of course, there was no proof to show that the defendant committed the same offense upon the same victim, since the two indictments involved different women. We see nothing in this case to take it from under the general rule stated in Wilson’s case, supra, and we hold that the court committed reversible error in admitting the evidence.

Three of the remaining special grounds pertain to rulings upon evidence, while one of them complains that the trial judge improperly restricted the defendant’s right to make his statement to the jury. None of these grounds presents any question that is novel or difficult, and it is not likely that the same questions will recur upon another trial of the case. Therefore we deem it unnecessary to pass upon said grounds. Of course the general grounds will not be considered.

Judgment reversed.

Hooper, J., concurs. Broyles, O. J., dissents.