Ricks v. State , 70 Ga. App. 395 ( 1943 )

There is no merit in the first ground of the motion for a rehearing, which complains of the ruling in division one of the opinion. The plea in abatement alleged merely that the indictment itself did not show on its face that it was properly returned. No evidence was offered in support of the plea, and the doctrine of judicial cognizance, the rule of presumption, and the stamp of authenticity borne by the indictment on its face, when applied to the plea in abatement, authorized the judge to enter a judgment overruling the plea. The fact that the judge used the words "disallowing the plea" instead of the words "overruling the plea," was such a technical error as would afford no cause for a reversal of the judgment. Wells v. State, 118 Ga. 556 (7) (supra).

Ground 2 assigns error on the admission, over objection, of testimony of T. O. Moseley as to the good reputation of Mrs. Judy McCoy. Special ground 10 assigns as error the admission over objection of similar testimony of Miss Florence Davis. The defendant contends that this testimony was immaterial; and that no attempt had been made to impeach her as a witness. We can not agree to these contentions, and think the evidence was properly admitted over the objections made. In his opening statement to the jury, the defendant's counsel stated that the defendant would undertake to prove, among other things, that Mrs. McCoy instituted the prosecution against the defendant either for the purpose of obtaining money from him, or for another purpose stated hereafter. On cross-examination Mrs. McCoy testified that she did not make the charge against the defendant, "trying to get money out of him;" that she did agree to settle the case for $100, if paid in cash, but that this matter of settlement originated with John Lowe, who testified that he was employed by the defendant to "investigate the case." Lowe testified that he told the defendant that Mrs. McCoy and her family "wanted money," and would drop the case if he got up money. It is inferable from Lowe's testimony that the matter of settling the case for money originated with Mrs. McCoy, and not with him. In his unsworn statement on the trial the defendant stated that Lowe told him that "he knew these people and all they wanted was money out of me."

In his opening statement to the jury, the defendant's counsel also said that the defendant would undertake to prove that if Mrs. McCoy did not institute the prosecution to obtain money from the defendant, she instituted it to prevent a threatened separation between her and her husband, about to ensue because of a statement made that Mrs. McCoy had appeared to be unduly intimate with the defendant, who was a negro barber. On cross-examination the defendant elicited from Mrs. Judy McCoy that her husband was angry with her, and threatened not to live with her because he claimed undue familiarity between her and a soldier; that McCoy's mother, Mrs. W. R. McCoy, made a statement that she thought Mrs. McCoy was too familiar with the defendant; and that her husband (Mrs. Judy McCoy's) took her to Oglethorpe Infirmary to have her examined to see if she were pregnant before leaving her. Mrs. W. R. McCoy, a witness for the defendant, testified that Carrie Stevens had said something about Mrs. Judy McCoy being too friendly with the defendant, and that the husband of Mrs. Judy McCoy, claimed to have seen his wife "hugging some soldier;" and that, upon being informed by Mrs. Judy McCoy of the defendant's alleged offense as charged in the indictment, her husband insisted upon her confronting the defendant himself with her statement; and that she thought her son "would be better off if he would leave" his wife. Carrie Stevens testified for the defendant that she accused Mrs. McCoy of being too intimate with the defendant, and that McCoy threatened to quit his wife on account of claimed intimacies with a soldier, and caused her to be examined as above stated in order that she could not blame it on him.

It was proper for the defendant to show, if he could, that Mrs. Judy McCoy instituted the proceedings against him from an improper motive, that is, either to extort money from him, or to create a situation which would in some way prevent the threatened separation between her and her husband. The jury would have had a right to consider such evidence "upon the question of the bona fides of the prosecution (and) . . upon what credibility ought to be attached" to the testimony of Mrs. Judy McCoy. McCullough v.State, 11 Ga. App. 612 (4), 617 (76 S.E. 393); Billings v.State, 8 Ga. App. 672 (2) (70 S.E. 36); Huff v. State,106 Ga. 432 (32 S.E. 348). "As illustrating the interest and credibility of a witness, and for the purpose of impeachment it is competent to show that the witness made an effort to improperly influence and suborn another witness in the case."Parker v. State, 11 Ga. App. 251 (3) (75 S.E. 437).

By attacking Mrs. Judy McCoy in an effort to show that the prosecution was instituted by her from improper and corrupt motives, the defendant put her character in issue, and it was permissible for the State to offer evidence of her general good character, to go to the jury together with all the other evidence in the case, to be considered by them upon the question of her credibility. It would be most unfair and unjust to the State's case to hold that the defendant might attack the character of the witness against whom the outrage was alleged to have been committed, without also holding that the State might be permitted, if it could, to corroborate that witness by proof of her good character in any manner authorized by law. "When in order to discredit a witness, his reputation has been assailed, the party by whom he was introduced has a right to introduce rebutting evidence to show that his character and reputation were good, even though the attempt to discredit was made on the examination of the witness himself."Gazaway v. State, 15 Ga. App. 467 (2) (83 S.E. 857). "If a witness is assailed on cross-examination by questions calculated to impeach his veracity and question his truthfulness, he may introduce evidence to sustain his general character." Warfieldv. L. N. Railroad Co., 104 Tenn. 74 (55 S.W. 304, 78 Am. St. R. 911); LaFollette v. Minton, 117 Tenn. 415 (101 S.W. 178, 11 L.R.A. (N.S.) 478); Chesapeake c. R. Co. v. Fortune, 107 Va. 412 (59 S.E. 1095); George v. Pilcher, 28 Gratt. (Va.) 299, 26 Am. R. 350. See also, in this connection, McTyier v. State,91 Ga. 254 (3), 256 (18 S.E. 140); Morrow v. State,18 Ga. App. 12 (88 S.E. 911). "The rule prevailing in England and in most of the American States, that evidence of character is not usually received when offered for the purpose of throwing light on the probability of the doing of a certain act by the person whose character is in question, is not of force in this State. The contrary doctrine has been recognized in our jurisprudence from a very early date . . . The courts of this State, out of deference to the policy expressed in the maxim, ``Let there be light,' have rejected the old rule, which has long outlived the reason from which it sprang." McClure v. State Banking Co.,6 Ga. App. 303, 304 (65 S.E. 33).

It is well settled law that when the transaction in question necessarily involves the character of a party, evidence of general good character is admissible. This rule has been applied frequently in cases in which fraud, theft, or other like conduct were charged; and in such cases the party thus charged and attacked is always permitted to offer proof of general good character. We know of no reason why this rule should not be applied in favor of a witness against whom the State contends a crime was committed, when the defendant contends upon the trial that the crime was not committed, but that the prosecution had its inception in the actual fraud and corruption of the complaining witness. Code, § 38-202; German-American c.Association v. Farley, 102 Ga. 720 (5), 745 (29 S.E. 615);Faulkner v. Behr, 75 Ga. 671 (5); Dalton v. Jackson,66 Ga. App. 825, 826 (18 S.E.2d 791); Mays v. Mays,153 Ga. 835 (4) (113 S.E. 154); Metropolitan Life Ins. Co. v.Hand, 25 Ga. App. 90, 91 (102 S.E. 647); Wimberly v.Toney, 175 Ga. 416 (6) (165 S.E. 257). Nothing here said is contrary to Bell v. State, 100 Ga. 78 (27 S.E. 669), and other like cases, holding that "a witness impeached by disproving the facts testified to by him, can not be sustained by proof of general good character." See also, McBride v. State, 150 Ga. 92, 95 (supra). For a discussion of the general question when evidence of general reputation is admissible to sustain a witness, see George v. Pilcher, 28 Va. 299 (supra).

Judgment adhered to. Broyles, C. J., and Gardner, J.,concur.