Cameron v. State , 66 Ga. App. 414 ( 1941 )

1. The evidence authorized the verdict.

2. (a) The judge did not err in refusing to allow the defendant, on cross-examination, to ask the State's witness what position the defendant held in the Woodmen of the World. The answer to the question was not relevant to any issue in the case.

(b) Another question propounded to the same witness by the defendant was as follows: "Do you know any reason why Mr. Brown would say he didn't see you that night, if he saw you?" The judge on his own motion instructed the witness that he need not answer that question. A witness should not be permitted to testify directly, without qualification, that another witness had a good or a bad motive in testifying to certain facts. Any answer to such question would be merely an opinion on the part of the witness, which the jury could draw from all the facts and circumstances as well as any nonexpert witness.

(c) Where the defendant was seeking to prove a collateral fact, to wit, the date when a certain dated check was actually signed which the witness himself had written, the testimony of such witness of said fact was nearer to the fact sought to be proved than the check itself. A check may sometimes be antedated or sometimes postdated, without any bad motive.

3. Where the defendant's counsel, on cross-examination, had attempted to show previous contradictory statements by a witness for the State, under the circumstances of this case the witness, on redirect examination, might explain his contradictory statements if he could, and neutralize, if he could, the effect of his testimony given on cross-examination.

4. Counsel for the accused can not argue to the jury concerning what he surmised would have been the answer to a question which was never propounded and which the counsel would not have been allowed to prove. Crawford v. United States, 30 App. D.C. 1.

DECIDED NOVEMBER 18, 1941. REHEARING DENIED DECEMBER 16, 1941. George Cameron was indicted in four counts for flogging. He was acquitted on counts 1 and 4, charging the flogging of E. L. Rammage and James W. Wilkes, and was convicted on counts 2 and 3 charging the flogging of D. M. Harper and W. H. Ables. To the overruling of his motion for new trial the defendant excepted.

1. Special grounds 7, 8, 9, 10, and 11 are but elaborations of the general grounds and will be considered therewith. D. M. Harper testified that on the night of July 7, 1939, the defendant and another came to his house, posing as officers of the law with a fake warrant and armed with a pistol, and forced Harper to go with them. Two other men were waiting in the car and they drove out to the city dumping grounds. On the way out the defendant said to Harper: "This is the second time we have had you out here and we are going to make a Christian out of you." When they arrived at the dumping grounds two other cars were there. Harper was taken from the car, stripped of his clothing and given about thirty lashes with a leather strap about as wide as one's hand and about three feet long. After the whipping he was told to go in the opposite direction, and finally got back to his home about 12:30 a. m. W. H. Ables testified that on August 11, 1939, three men posing as officers came and took him from his home. He described being flogged in the same manner as did Harper. Mrs. Ables identified the defendant as being one of the men who came and took Mr. Ables away. This evidence was sufficient to authorize the jury to find that the defendant participated in the floggings, and these grounds of the motion for new trial are not meritorious. Bryant v. State, 65 Ga. App. 523 (16 S.E.2d 241); Walton v. State, 65 Ga. App. 124 (15 S.E.2d 455);Eidson v. State, 65 Ga. App. 119 (15 S.E.2d 452);Forster v. State, 65 Ga. App. 123 (15 S.E.2d 454);Cawthon v. State, 65 Ga. App. 428 (16 S.E.2d 247).

2. Grounds 1, 2, and 3 relate to matters and questions propounded to a witness for the State by counsel for the defendant on cross-examination. Under Code, § 38-1705, every party has the right to a thorough and sifting cross-examination of witnesses called against him, and a substantial denial of this right is cause for a new trial. But the scope of cross-examination is not unlimited, and rests largely within the discretion of the judge. One question propounded by counsel for the defendant was, "What position did he [the defendant] hold with the Woodmen of the World?" Another was, "Do you know of any reason why Mr. Brown would say he didn't see you that night if he saw you?" An answer to the first question would not, we think, have been relevant to any issue and might have tended to prolong the trial, multiply the issues and confuse the jury. Andrews v. State, 118 Ga. 1, 4 (43 S.E. 852); City of Brunswick v. Glogaur, 158 Ga. 792 (6), 818 (124 S.E. 787). As a general rule a witness should testify to what he knows, and not that he does not know a certain thing or things, for things he does not know may be innumerable. A witness should not be permitted to testify directly without qualification that another witness had a good or a bad motive in testifying to certain facts. Cihak v. Klekr, 117 Ill. 643 (7 N.E.. 111); Manufacturers Bank v. Koch, 105 N.Y. 630 (12 N.E. 9); 1 Jones on Ev. § 167; note in 21 Am. St. R. 314. One can not testify thus broadly as to what was or was not the motive of another witness in testifying. Huger v. Protestant EpiscopalChurch, 137 Ga. 205 (6), 208 (73 S.E. 385). One can not state his mere conclusion that he knows of no reason why another witness should testify falsely. Bush v. McCarty, 127 Ga. 308 (6) (56 S.E. 430, 9 Ann Cas. 240). Any answer to the second question would have been merely an opinion of the witness. The jury as well as the witness, could draw a conclusion from the facts and circumstances. We do not think the judge abused his discretion in controlling the cross-examination in these instances, or in overruling the motion for new trial for these reasons. See Corley v. State, 64 Ga. App. 841 (4), 843 (14 S.E.2d, 121). In ground 2 the defendant contends "that it was error to refuse to admit the check as evidence of the date thereon in connection with his alibi." The brief of evidence recites on the last page that "the defendant introduced two checks as follows:" setting out the checks, one of which was the check in question. However, it may be noted that the contents of the check relative to the date on which it was signed did not put in issue any reciprocal rights and duties of the parties under the writing, but, at most, put in issue only a collateral fact, the date of the check; and the oral testimony of the witness as to the date of the check which he had written was nearer the fact sought to be proved than was the check itself — when the check was in fact written and signed. A check is sometimes antedated and sometimes postdated without any bad motive. Blocker v. State, 58 Ga. App. 560,563 (199 S.E. 444); Streeter v. State, 60 Ga. App. 190 (2) (3 S.E.2d 235). This ground does not disclose reversible error.

3. Grounds 4, 5, and 6 complain of the admission of the testimony of Luke Trimble, on redirect examination, upon being recalled, that he conferred with the higher officers of his local klan and with the national officers of the Knights of the Ku Klux Klan and with his lawyer before he admitted these floggings. Trimble had participated in the floggings, and he had testified on cross-examination that he did not like to testify against the defendant but that he was doing it now, and, further, there was an attempt by counsel for the defendant to show that the witness had made previous contradictory statements to the effect that he had told the defendant that he did not want to but that he had to testify against him and the others, whereas on this trial he stated he did not remember having told the defendant this. Thus the State recalled the witness Trimble, and on redirect examination was attempting to neutralize the effect of this testimony given on cross-examination and to sustain Trimble's credibility before the jury. It was not error to admit the testimony. Walton v. State, supra; McGinty v. State,59 Ga. App. 675 (2 S.E.2d 134); Aycock v. State, 62 Ga. App. 812,815 (10 S.E.2d 84).

4. Counsel for the defendant, in his argument to the jury, commented that the State had not seen fit to cross-examine the character witnesses whom the defendant had presented against W. C. Bishop, a witness for the State, and stated that he wondered what reasons the witnesses would have given for not believing Bishop on oath if the State had so asked on cross-examination. The court, on proper objection to this argument as being improper, instructed the jury that this argument was improper and to disregard same, and further instructed counsel for the defendant not to continue arguing along this line. The defendant excepted to this ruling in ground 12 on the ground that this was a proper argument as a matter of law and a logical deduction from the evidence.

When a witness is sought to be impeached, as here, by evidence as to his general bad character, the impeaching witness should be asked first as to his knowledge of the general character of the witness, next as to what that character is, and lastly he may be asked if, from that character, he would believe him on oath. Code, § 38-1804. These questions are specified by the Code, and it impliedly excludes all others. Barnwell v. Hannegan,105 Ga. 396, 400 (31 S.E. 116); Taylor v. State, 17 Ga. App. 787 (2) (88 S.E. 696). Thus, here the defendant's counsel could not on direct examination have asked the impeaching witness to give a reason why he would not believe the State's witness on oath, and consequently, if there was no cross-examination of the impeaching witness, there was no evidence before the jury as to why he would not believe Bishop other than because of the general bad character of Bishop. When counsel for the defendant was arguing, as he was to the jury, as to what answer his witness would have given if he had been asked on cross-examination what specific reasons, other than Bishop's general bad character, he would have given as to why he would not believe Bishop on oath, counsel was in effect arguing matters that were not in evidence, that is, specific reasons why the impeaching witness would not believe Bishop on oath. Defendant's counsel was in effect seeking to surmise the answer to a question which had never been asked the witness, and which under the circumstances counsel for the defendant was prohibited by law from asking him. Ratteree v.Chapman, 79 Ga. 574 (4 S.E. 684); Andrews v. State,118 Ga. 1, 4 (43 S.E. 852); Columbus Rome R. v. Christian,97 Ga. 56, 61 (25 S.E. 411). "All reasonable latitude should be allowed attorneys in their arguments to the jury on the facts and on inferences and deductions from the facts." Cammons v.State, 59 Ga. App. 759, 767 (2 S.E.2d 205). But counsel for the defendant was not entitled to thrust into the case by direct words or implications what he surmised might be the answer of a witness to a question which would have been illegal if propounded by defendant's counsel. This would be lugging into the case extraneous matter that was not a part of it. Cammons v.State, supra. "What the law condemns is the injection into the argument of extrinsic and prejudicial matters which have no basis in the evidence." Cammons v. State, supra, 768. There was no evidence upon which to base such an argument, and the judge was correct in prohibiting it and in instructing counsel and jury as is stated in this ground.

Judgment affirmed. Broyles, C. J., and Gardner, J., concur.

ON MOTION FOR REHEARING.