Marcus v. State , 76 Ga. App. 581 ( 1948 )

1. Although the evidence might authorize a different verdict, where there is enough to support the verdict found the judgment of the trial court refusing a new trial on the general grounds will not be disturbed. See Code (Ann.) § 70-202, catchwords "Any evidence."

2. Where the jury already has before it doubtful or objectionable matter, and there is no motion to withdraw it, its repetition, though objected to, may be treated as not sufficiently material to require a new trial. See Cox v. State, 64 Ga. 375 (9) (37 Am. R. 76).

3. When error is assigned upon the failure of the court to charge a required principle of law at a particular place in the charge, or in connection with a specified part thereof, the whole charge must be looked to in order to determine whether or not the alleged omitted part is error; and construing the charge as a whole, if the required part alleged to be omitted at a particular place is elsewhere contained in it, the charge is without error on this ground. See Brown v. Matthews, 79 Ga. 1 (4 S.E. 13).

4. In all criminal trials, whether dependent upon positive or circumstantial evidence, the only question is, not whether it be possible that the conclusion to which the proof points may be false, but whether there is sufficient testimony to satisfy the mind and conscience beyond a reasonable doubt.

DECIDED MARCH 2, 1948. Richard Marcus was indicted at the September term, 1947, of the Superior Court of McDuffie County, for assault with intent to murder. On the trial both the State and the defendant introduced evidence, and the latter made a statement in his own behalf. The evidence produced by the State is in substance as follows: Leonard Cason, the prosecutor, was walking down the road from his home to Dearing when he was overtaken by the defendant, who was driving an automobile and who stopped and accused the prosecutor of turning up a still belonging to him. After some argument the defendant hit the prosecutor across the eye with his fist and, catching him in the collar with one hand, holding a pocketknife in the other hand, threatened to kill the prosecutor, who broke away from the defendant and ran up the road. While the prosecutor was running, the defendant returned to his automobile, procured a shotgun and shot at the prosecutor just as he was jumping a fence to get into the woods. One shot hit him in the stomach, one in the shoulder and one in the head. All this occurred in McDuffie County, on Saturday between 1 and 1:30 o'clock, June 14, 1947.

Another witness testified that she heard a shot at approximately the place described by the prosecutor, and that she heard an automobile turn around shortly after the shot was fired.

There is also evidence in the record that the prosecutor had seen the defendant and his father place a still on the Mrs. Clyde Hunt place, and had seen it in operation, and that he reported the still to the Federal officers.

The defendant introduced testimony to the effect, that on June 14 (the day alleged in the bill of indictment that the shooting took place), the prosecutor came to the home of Ed Carver at 11 o'clock in the morning; that he did not leave the home of Carver until after 4 o'clock; and that the pick-up truck which was owned by Carver was not moved from his front yard by anyone until after 4 o'clock in the afternoon.

This testimony is corroborated by several witnesses. The defendant in his statement said that he came to his home from Augusta on the day of the alleged shooting by way of Dearing, where he stopped and bought a barbecue sandwich, and returned to his home at 11 o'clock and stayed there until 4. The defendant also denied having seen Leonard Cason on the day of the alleged shooting, denied having hit him, or having threatened him, denied shooting at him on this day or any other day, and denied that there were any hard feelings between them.

The jury returned a verdict finding the defendant guilty and sentence was accordingly imposed.

The defendant filed a motion for new trial on the general grounds, which he later amended by adding special grounds numbered 1 to 3.

The trial judge overruled the defendant's motion for new trial as amended, and that judgment is assigned as error. 1. It is a well-established rule in this State that, when a motion for a new trial is based on the general grounds, and there is sufficient evidence to support the verdict and it has been approved by the trial judge, such judgment will not be interfered with by this court. See Pafford v. State, 35 Ga. App. 255 (132 S.E. 781); Foster v. State, 43 Ga. App. 427 (159 S.E. 141);Butler v. State, 47 Ga. App. 305 (170 S.E. 382); Brown v. State, 154 Ga. 54 (113 S.E. 161). The verdict of the jury in the instant case is supported by the evidence. It has the approval of the trial judge. The general grounds of the motion for new trial are without merit.

2. Special ground 1 assigns error on the admission of the following testimony: Leonard Cason, the prosecutor, being recalled as a witness for the State, testified: "There was a whisky still over there near me previous to this, and I did turn up that still, or helped Mr. Frank Rogers to. I told Mr. Rhodes, the Federal man, about it, and I know that Mr. Rhodes tore it up. I told them it was this boy's still (meaning defendant's). That was about the 20th day of April this year when I turned this still up, it was torn up that same day. This still was located on Mrs. Clyde Hunt's place."

The following objection was made by the defendant to the admission of this testimony: "That it would certainly not have any probative value whether there was a still there next to him (defendant) or not; that such evidence was inadmissible, immaterial, and prejudicial, and did not illustrate any issue in the case, the fact that the witness said he found a still, that he turned up that still, and told it belonged to the defendant."

When Leonard Cason was first on the stand under cross-examination by counsel for the defendant, he testified as follows: "I said that he told me that I had turned up his still, I was not the very man that had been doing the distilling. That was not my still and I was not afraid he would turn me up."

Counsel for the defendant then made no motion to withdraw this testimony. When this witness was recalled by the State and gave the testimony objected to, which was in explanation of the testimony he gave in answer to a question by counsel for the defendant, counsel for the defendant could not, at this time, object to this testimony for the reason that it had been allowed to go before the jury prior to the objections without any objection being made by counsel for the defendant. See, in this connection, Cox v. State, 64 Ga. 375 (the last part of headnote 9), as follows: "As the jury already have before them doubtful or objectionable matter, and there is no motion to withdraw it, the repetition of it by another witness, though objected to, may be treated as not sufficiently material to require a new trial."

Ground 1 of the amended motion for new trial is without merit.

3. Special ground 2 assigns error on the ground that the court erred in charging the jury as follows: "If you do not believe the defendant guilty of any offense under this bill of indictment, or if you entertain a reasonable doubt of his guilt, it would be equally your duty to acquit him, and in that event the form of your verdict would be . . . ``We, the jury, find the defendant not guilty,'" and the following: "And now, also, if you believe that the defendant has established his defense of alibi, which the court has already given you in charge, you would not be authorized to find him guilty."

The defendant contends that the latter part of this charge, regarding the defense of alibi in connection with that part of the charge which refers to reasonable doubt — the court using as an introduction the language "and now also" — infers that the defendant would have to establish his defense of alibi beyond a reasonable doubt, and not as the law provides, by a preponderance of the evidence. Elsewhere in his charge the trial judge fully and properly instructed the jury with reference to the defense of alibi and the degree of proof required to establish it.

The charge of the court taken as a whole does not show any error harmful to the defendant. If, after consideration of the whole charge, it does not appear that an error prejudicial to the defendant was committed, no new trial will be granted. See, in this connection, Horton v. State, 21 Ga. App. 120 (93 S.E. 1012); McDonald v. State, 21 Ga. App. 125 (94 S.E. 262);Walker v. State, 124 Ga. 97 (52 S.E. 319); White v. State,147 Ga. 377 (94 S.E. 222). This special ground fails to show sufficient reason for new trial.

4. Special ground 3 complains that the trial court erred in charging the jury in the substantial language of § 38-110 of the Code on the subject of what evidence warrants a conviction, and reasonable doubt.

The defendant contends that this portion of the charge was prejudicial and confusing, and authorized the jury to convict even though they realized that the conclusion to which the evidence pointed was false. The court was charging § 38-110 of the Code, which is as follows: "When evidence warrants conviction; reasonable doubt. Whether dependent upon positive or circumstantial evidence, the true question in criminal cases is, not whether it be possible that the conclusion at which the evidence points may be false, but whether there is sufficient evidence to satisfy the mind and conscience beyond a reasonable doubt." See, in this connection, John v. State, 33 Ga. 257 (2), which is as follows: "In all criminal trials, whether dependent upon positive or circumstantial evidence, the only question is, not whether it be possible that the conclusion to which the proof points may be false, but whether there is sufficient testimony to satisfy the mind and conscience beyond a reasonable doubt." See also, in this connection, Thrasher v.State, 24 Ga. App. 803 (102 S.E. 363).

Under the facts in the case, and when considered in connection with the entire charge, there is no error in the excerpts complained of in the motion for a new trial.

No error of law appears; the jury is the final arbiter of the facts, and the judge, who saw and heard the witness, approved its finding. Therefore this court will not interfere.

Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.