Moyers v. State , 61 Ga. App. 324 ( 1939 )

1. "The right of one accused of crime to a thorough and sifting cross-examination of a witness appearing against him is not violated by ruling out a question hypothetical in nature, assuming facts not in evidence, and amounting to aimless, useless, and purposeless examination which would be waste of the court's time." Clackum v. State, 55 Ga. App. 44 (10) (189 S.E. 397).

2. Where the indictment for robbery alleges the money taken to be the property of Glenn, and he is the president of a bank and in actual lawful possession of the money, the ownership may be laid in either the person having such actual lawful possession or in the bank which has the lawful legal title and the constructive possession, and the questions as to whether the bank had a bond indemnifying itself against loss in case of robbery, and whether the bank had made any demand upon the bonding company for reimbursement, were irrelevant under the facts in the instant case.

3. Where leading counsel was conducting the cross-examination of a witness, the trial court did not abuse its discretion in refusing to allow the defendant (an attorney at law himself) also to conduct the cross-examination.

4. The court did not err in excluding evidence offered for the purpose of showing that the accused did not flee after the robbery, although he had full opportunity of flight. Flannigan v. State, 135 Ga. 221 (69 S.E. 171).

5. In a case where documentary evidence is submitted, an instruction, "Now, gentlemen, you have been impaneled as fair and impartial jurors, free from any prejudices or bias, and you have been sworn to try this case on the evidence in the case. You are to take the evidence as it comes to you from the witness-stand, including the statement of the accused, and take the law as it comes to you from the court; and on these you are to make up your verdict," is technically inaccurate and inapt. But, from the general structure of the charge and the scope of the evidence, it is apparent that the jury could not have been misled by the inaccurate expression, as excluding the documentary evidence from their consideration. Especially is this true where it appears that elsewhere in his charge the court instructed the jury: "A reasonable doubt, gentlemen, is a doubt for which you can assign a reason, not an arbitrary or capricious doubt. It is a doubt that would grow out of the case itself from a lack of evidence or from insufficient evidence, or from conflict in the evidence or from the defendant's statement; and it is such doubt as, after you have conscientiously given consideration to the entire case in an effort to arrive at the truth, would leave your minds uncertain and wavering as to what the truth is. That would be reasonable doubt. You are made by law the exclusive judges of the evidence. You are the exclusive judges of the credibility of the witnesses." (Italics ours.)

6. The requested charge was a hypothetical statement by way of instruction, and was insufficient, because it embraced but a part of the issues and ignored all facts necessary to be found as bases for the verdict. Southern Railway Co. v. Wilcox, 59 Ga. App. 785, 791 (2 S.E.2d 225).

7. The evidence, taken as a whole, did not warrant a charge on delusional insanity.

8. The court reduced its charge to writing, read it, and filed the same with the clerk in response to the timely written request of the defendant so to do. Thereafter, the jury returned and asked the court for additional instruction which the court gave, in part from the original written charge, which the court immediately refiled, and in part from outside the original written charge, which part outside of the original written charge the judge had properly reduced to writing before giving it to the jury and immediately thereafter filed it with the clerk. Held: The court did not commit reversible error in that it did not comply with the provisions of the Code, §§ 81-1102, 81-1103, which are as follows: "The judges of the superior, city, and county courts shall, when the counsel for either party requests it before argument beings, write out their charges and read them to the jury, and it shall be error to give any other or additional charge than that so written and read. . . The charge so written out and read shall be filed with the clerk of the court in which it was given, and shall be accessible to all persons interested in it; and the clerk shall give certified copies thereof to any person applying therefor, upon payment of the usual fee."

DECIDED OCTOBER 17, 1939. REHEARING DENIED DECEMBER 14, 1939. W. T. Moyers was convicted of robbery, filed a motion for new trial which was overruled and he excepted.

1. Special ground 1 assigns error on the ruling of the court sustaining an objection to the question of counsel for defendant on cross-examination of Mr. Glenn in which Mr. Glenn was asked, "If Moyers [defendant] had demanded a half-million dollars, would you have gone down and fixed that up and brought it to him?" The contention is that the ruling of the court abridged the defendant's right to a thorough and sifting cross-examination; that "the question was material as affecting the credibility of the witness Glenn, and for the purpose of allowing the jury to determine whether the transaction was as contended for by the defendant, that is, that the witness Woodruff owed the defendant $30,000, and that the defendant [witness?] Glenn procured said sum only because he was instructed to do so by the witness Woodruff, and that had a larger amount been demanded by the defendant that the witness Glenn would have delivered said sum." This court, in Clackum v. State, supra, said: "While it is recognized that it is the substantial right of one accused of crime to a thorough and sifting cross-examination of every witness that appears against him, and that this right should not be abridged, yet this right is not violated by the judge in ruling out a question on cross-examination, hypothetical in nature, assuming facts not in evidence, which would amount to aimless, useless, and purposeless examination, and would prove a waste of time of the court." See also Durham v. State,138 Ga. 817 (76 S.E. 351); Styles v. State, 176 Ga. 637 (3) (168 S.E. 887); Granison v. State, 49 Ga. App. 216 (174 S.E. 636); Lewis v. State, 90 Ga. 95 (15 S.E. 697); 70 C. J. 638, § 809. The court did not err in sustaining the objection. The question was hypothetical in nature and assumed a fact not in evidence. The evidence here was of the theft of $30,000, not a half million.

2. Special ground 2 complains that the defendant's right to a thorough searching and sifting cross-examination of the State's witness Black was abridged by the court in failing and refusing to permit counsel for the defendant to interrogate said witness as follows: "Do you know whether any demand was made on any insurance company for any alleged losses the bank is alleged to have sustained by reason of a robbery?" Further, that it was "highly relevant and necessary from the defendant's standpoint to prove his innocence, it being contended by the defendant that the money was obtained by him in full settlement of the claim he had against the witness, Woodruff, and the failure of the Trust Company of Georgia or of Glenn [its president] to have made demand on the insurance company for reimbursement is a circumstance which the jury might conclude corroborated the statement of the defendant."

Where an officer or agent of a bank is robbed of money in his actual lawful possession, as distinguished from mere custody, although the legal title is in the bank, the ownership may be laid in either the person having such actual lawful possession or in the bank, even though the bank had the legal title and the constructive possession. Henley v. State, 59 Ga. App. 595,600 (2 S.E.2d 139); Thomas v. State, 27 Ga. App. 38 (2) (107 S.E. 418). Where the ownership of the money alleged in the indictment to have been taken in a robbery is in the person or agent having the actual legal possession, it is immaterial in the trial of the case whether the bank (even though it had the legal title) had any insurance against robbery or not, and even if the insured and the insurance company had already reimbursed the bank it would not change the character of the transaction, for, if the transaction amounted to robbery, it would still be robbery, even though the bank had been subsequently reimbursed by the insurance company. O'Neal v. State, 10 Ga. App. 474 (73 S.E. 696). On the other hand, if this question had been allowed by the court it would likely have opened up another issue as to whether the bondsman of the bank was liable, or whether, when Glenn obtained the money from the bank for Woodruff, the legal title had not passed out of the bank and into Woodruff, and thus have plunged the court into a collateral issue of the liability of the bonding company which was unnecessary in order to fairly determine the material issues in the case. We therefore do not think that the court improperly abridged the right of the defendant to a thorough and sifting cross-examination of a State's witness in refusing to allow him, for the first time, on cross-examination, to go into the question of whether a bond had been given to cover losses in the event of a robbery, or if the bank had such a bond, whether Glenn, the president of the bank, had made a demand for reimbursement. Applying this "rule of relevancy" to the cross-examination, we think the ground is without merit. Granison v. State, 49 Ga. App. 216, 218 (174 S.E. 636).

3. After Mr. Finch, attorney for the defendant, had insisted upon asking the State's witness Black, "Do you know whether any demand was made on any insurance company for any alleged losses the bank is alleged to have sustained by reason of a robbery?" which we decided in the preceding division of this opinion was irrelevant, the following colloquy took place: Mr. Finch: "No. I say it is a circumstance the jury should consider." The court: "I don't think so. I think it is irrelevant." Mr. W. T. Moyers [defendant]: "Your Honor, the bank would not." . . The court: "I can not hear from you, Mr. Moyers." The defendant complains in special ground 3 that this deprived him of his constitutional right to defend himself, in that, after the court had sustained an objection to the question asked the witness Black on cross-examination as to whether or not any demand was made on the insurance company, it declined to hear from him (the defendant) on the objection. Code, § 2-104, declares: "No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State, in person, by attorney, or both." See also Gatlin v. State, 17 Ga. App. 406 (87 S.E. 151);Jones v. State, 57 Ga. App. 344, 345 (195 S.E. 316). "In all cases in which more than one attorney is retained on either side, the examination and cross-examination shall be conducted by one of the counsel only; and at the opening of the case both parties shall state to the court to which attorney the examination and cross-examination of witnesses is confined." Code, §§ 24-3359, 24-3388. In the instant case, Mr. Finch was leading counsel and was conducting the cross-examination. Confusion and perplexity would necessarily arise if a cause were to be conducted at the same time both by counsel and by the party himself. If the defendant has counsel to conduct his cause, he may suggest any question to them which he considers fit to be put; or if he takes the conduct of it upon himself he may have the benefit of their private suggestions upon matters of fact, and as soon as any point of law arises they shall be readily heard upon it. The trial court has the undoubted right to hold all trials to their proper and legitimate channels. It is not only his legal right, but his duty as well, to see that the court's business proceeds in an orderly and decorous manner. We are of the opinion that, as the defendant was represented by counsel (and we might add, able and experienced counsel), the trial court did not abuse its discretion in refusing to allow the defendant to also conduct the cross-examination of the witness. See Roberts v. State,14 Ga. 18 (2); Rex v. White, 170 English Rpts., 1318; Leahyv. State, 111 Tex.Crim., 570 (13 S.W. (2d) 874); State v. Ingram, 316 Mo. 268 (289 S.W. 637 (2)).

4. Special ground 4 complains of the ruling of the court excluding certain testimony of Mr. Thomas Howell Scott to the effect that after the alleged robbery of Mr. Glenn by the defendant Moyers, Moyers paid Scott $15. The defendant contends that it was relevant because "If, they claim, he had robbed anybody of thirty thousand dollars, he would have absconded." This evidence was to the effect that the defendant did not flee or conceal himself after the commission of the crime, and was thus consistent with his innocence. The evidence was not admissible. In Flannigan v. State, 135 Ga. 221 (3) (69 S.E. 171), it was said: "The court did not err in excluding evidence offered for the purpose of showing that the accused did not flee after the homicide, although he had full opportunity of flight." See also Lingerfelt v. State, 125 Ga. 4 (2) (53 S.E. 803, 5 Ann. Cas. 310); Dunn v. State, 13 Ga. App. 682 (3) (79 S.E. 764).

5. In special ground 5 movant avers, alleges, and complains that the judge erred in instructing the jury as follows: "Now, gentlemen, you have been impaneled as fair and impartial jurors, free from any prejudices or bias, and you have been sworn to try this case on the evidence in the case. You are to take the evidence as it comes to you from the witness-stand, including the statement of the accused, and take the law as it comes to you from the court, and on these you are to make up your verdict." Movant contends that this charge excluded from the consideration of the jury certain documentary evidence introduced by and relied upon by the State and by the defendant. A similar error was charged in Hamilton v. State, 18 Ga. App. 295, 299 (10) (89 S.E. 449), and this court said: "It is further complained that the instruction to the jury to base their verdict upon the facts ``as you get them from the witness-stand' excluded from their consideration documentary evidence. The documentary evidence in the case was identified by witnesses on the stand, and was part and parcel of their testimony, and the charge of the court did not limit in any way the jury's consideration of all the evidence adduced upon the trial." In the instant case it appears that the witnesses in their testimony identified the documentary evidence. It also appears that the defendant in his statement identified certain of the documentary evidence. Though technically inaccurate, and while it would have been better for the court to have instructed the jury that they should consider all the evidence, oral and written (and in a case where physical evidence is introduced to add this to the charge), in applying the law to the case, we do not think that the jury was in any way misled by the particular expression of the court of which complaint is made.

The defendant contends that the above-quoted portion of the charge was error for the further reason that it excluded the testimony given on the previous trial by Charles A. Bickerstaff who is now dead, and "said evidence was read by E. A. Stephens, assistant solicitor-general, a part of which testimony was relied upon by movant to justify a requested charge on delusional insanity." With reference to this contention, we are of the opinion that this excerpt of the charge was technically inaccurate and inapt, but relative to the evidence of Bickerstaff, a witness who had testified from the stand on the former trial and who had died before the time of the present trial (and of course could not go upon the stand on this trial), his testimony was read to the jury by the assistant solicitor-general as evidence which had been delivered from the stand on the former trial. The testimony of Bickerstaff did not raise the question of delusional insanity, nor did the whole testimony in the case, including this testimony of Bickerstaff, present such evidence as to require or authorize the judge to charge on delusional insanity. The testimony of Bickerstaff was in favor of the State, and even if it had been entirely eliminated the result would have been harmful to the State and not to the defendant. The circumstances under which this testimony was read to the jury, the scope of the evidence in the entire case, and the general structure of the charge as a whole, lead us to the conclusion that it is apparent that the charge did not withdraw from the jury any issue comprehended in the pleading and the evidence, and no error relative to the testimony of Bickerstaff or the documentary evidence harmful to the defendant is disclosed by the record. Especially is this true since elsewhere in his charge the judge stated: "A reasonable doubt, gentlemen, is a doubt for which you can assign a reason, not an arbitrary or capricious doubt. It is a doubt that would grow out of the case itself from a lack ofevidence, or from insufficient evidence, or from conflict in the evidence or from the defendant's statement, and it is such doubt as, after you have conscientiously given consideration tothe entire case in an effort to arrive at the truth, would leave your minds uncertain and wavering as to what the truth is. That would be a reasonable doubt. You are made by law, gentlemen, the exclusive judges of the evidence. You are the exclusive judges of the credibility of the witnesses." (Italics ours.) See in this connection Fowler v. State, 187 Ga. 406 (1 S.E.2d 18); Hendrix v. Bank of Portal, 169 Ga. 264, 266 (6) (149 S.E. 879); Harris v. State, 55 Ga. App. 189, 190 (2) (189 S.E. 680); Jones v. McElroy, 134 Ga. 857 (5) (68 S.E. 729, 137 Am. St. Rep. 276); Darden v. Washington, 35 Ga. App. 777 (6) (134 S.E. 813). Compare John Hancock Mutual Life Ins.Co. v. Davis, 50 Ga. App. 266 (177 S.E. 822), cited by plaintiff in error.

6. Special ground 6 complains of the court's failure to charge upon request as follows: "I charge you that if you believe that the defendant made any threat to sue the witness Woodruff and to attach his property, and if you find that acting under that threat the witness Woodruff assented to the witness Glenn going out of the presence of the defendant for the purpose of securing $30,000 and delivering it to the defendant, I charge you that the defendant would not be guilty of robbery." The defendant contends that the request was warranted by the defendant's statement, and a failure to so charge was error because the same constituted part of the defense made by the defendant. We recognize the rule that if a theory of law is raised only by the defendant's statement, and there is an appropriate, timely, written request to charge such theory, it is reversible error to fail to charge that theory. Wrye v. State, 99 Ga. 34 (25 S.E. 610);Cain v. State, 7 Ga. App. 24 (65 S.E. 1069); Abernathy v. State, 51 Ga. App. 452, 454 (180 S.E. 753). See alsoRoberts v. State, 114 Ga. 450 (40 S.E. 297). "But even conceding that each of the written requests embodied a correct statement of the abstract law as heretofore announced by this court, the trial judge properly declined to give them in charge; for to have done so would have been to unduly stress this feature or phase of the case. A defendant is entitled to a concrete application of the law to the peculiar facts of the case, if he presents a timely written request to charge; but he is not entitled to an elaboration of the abstract law upon a single phase of the case to such an extent as will give to it undue prominence." Harrell v. State, 121 Ga. 607, 611 (49 S.E. 703). In Southern Railway Co. v. Wilcox, 59 Ga. App. 785,790 (2 S.E.2d 225), this court, in refusing to give the requested charge, "If you find from the evidence that the plaintiff ran his car into the side of the engine or train, I charge you that the plaintiff can not recover in this case, and you should find for the defendant," said: "This requested charge was a hypothetical statement by way of instruction, and was insufficient because it embraced but a part of the issues and ignored all facts necessary to be found as bases for the verdict." It is true that the Wilcox case was a civil case; however, the same rule governs in a case wherein a citizen is charged with a crime. In other words, the judge in the instant case did not err in refusing the requested charge, for the requested charge in this case would have directed the attention of the jury specially to a particular fact, amongst a great number of facts of which the evidence consisted, and to have so charged would have been to unduly stress this feature or phase of the case. The requested charge was insufficient because it embraced but a part of the issues and ignored all facts necessary to be found as bases for the verdict. In addition, the charge when considered as a whole covered plainly and in substance the principles of law stated in the requested charge, and the failure to give the charge in the language requested was not reversible error. Southern Railway Co. v. Wilcox, supra.

7. Special ground 7 complains that the judge erred in failing to charge, upon request, on delusional insanity; that is, to charge the jury in effect that if they believed the defendant was obsessed with the hallucination or delusion that the witness Woodruff was indebted to him in the sum of $30,000, and this delusion so acted upon the defendant that he was unable to distinguish between right and wrong, and while under such delusion he compelled the witness Glenn, at the point of a gun, to deliver to him said sum, the defendant would not be legally responsible and the jury would be authorized to acquit him. The judge did not commit reversible error in failing to so charge. After a careful consideration of the evidence we are of the opinion that it did not warrant a charge on delusional insanity. But, conceding that the evidence warranted a finding that the defendant did act under such delusion, we are of the opinion that what the defendant insanely believed, were it true, would not justify robbery by intimidation. McKinnon v. State, 51 Ga. App. 549, 556 (181 S.E. 91). "If the delusion is as to a fact which would not excuse the act with which the prisoner is charged, the delusion does not authorize an acquittal of the defendant." Mars v.State, 163 Ga. 43, 60 (135 S.E. 410). Here we have the defendant going into the office of a citizen of this State and demanding of him, at the point of a gun, that he pay an alleged indebtedness of $30,000 because he was under the delusion that the citizen owed him that amount. Was this delusion that this citizen owed him (defendant) $30,000 such a delusion as would acquit the defendant of criminal responsibility, if, while laboring under such a delusion, he committed the act of pointing a pistol at another, and by intimidation took the money of such person? We think not. The law has prescribed an adequate remedy for the collection of debts, if they exist. It will not allow the collection of debts at the point of a pistol. There was no evidence to warrant a charge on delusional insanity, and the judge did not err in refusing to charge as requested. The case ofFlanagan v. State, 103 Ga. 619 (30 S.E. 550), relied upon by plaintiff in error, is distinguishable from the instant case. In that case the evidence was sufficient to warrant a charge on delusional insanity, and the delusion, if true, would have justified the act; whereas in the instant case the evidence did not authorize such a charge and the delusion, if true, would not have justified the act. Taylor v. State, 105 Ga. 746, 777 (31 S.E. 764), cited by the defendant (plaintiff in error), sustains the position taken by this court and is not authority for the defendant's position.

8. In special ground 8 the defendant contends that he presented a timely, written request that the judge reduce his charge to writing, and that while this request was complied with as to the original charge, yet, when the jury, after deliberating for a time, returned and asked for a recharge, the judge did not reduce the whole of this recharge to writing, read it to the jury, and file it with the clerk, as required by Code, §§ 81-1102, 81-1103; but, instead, wrote and filed only the additional charge, and waited until several months thereafter to reduce to writing and file that part of the recharge which the judge reread from his original charge. With respect to this special ground the judge certified: "Movant, as alleged in said ground, requested that the court deliver a written charge to the jury, said request being delivered to the court before the argument of counsel had begun. The court prepared a written charge, which is correctly set out and quoted in this ground of the amendment. This written charge was read verbatim to the jury, and was immediately filed with the clerk. The jury, after having retired and considered the case for a time, requested to be recharged on certain features. The court thereupon reread to the jury verbatim from the written charge which had been delivered and which had been filed with the clerk, and wrote out and read to the jury verbatim the additional matter set out and quoted on page 24 of this amendment, which bears the signature of the judge and the entry of filing on the 28th day of October, 1938, and signed by C. E. Hartsfield, deputy clerk. This additional matter, which was so written out and read to the jury, was immediately filed with the clerk. The original charge from which the court reread a portion was at the same time refiled with the clerk. The court did not, either in the original charge or in the recharge to the jury, deliver any charge whatsoever except that which had been written out and which was filed with the clerk, as above stated."

It has been said by the Court of Appeals that "The principal object in requiring the charge to be reduced to writing, and read to the jury as written, and then filed with the clerk of the court, is to prevent disputes between the judge and counsel as to what was the charge." Dowling v. State, 7 Ga. App. 613, 614 (67 S.E. 697); Homer v. State, 6 Ga. App. 667, 669 (65 S.E. 701); Fry v. Shehee, 55 Ga. 208, 214. Suppose the judge in this case had reread verbatim et literatim to the jury the entire charge which he had already delivered to the jury and filed with the clerk, and had, immediately after rereading a second time the entire original charge to the jury, refiled it with the clerk, would it have been necessary, before rereading it, to have rewritten and refiled the entire original charge when he was going to reread it word for word, thus having the same written charge in the record twice? We think not. Then, because he only reread a portion instead of all the original charge, but refiled the entire original charge, would it demand a new trial? We think not. The refiling of the entire original charge was a refiling of all of its parts. Everything the judge charged in this case was written out, read to the jury, and then filed with the clerk immediately after the reading, and any error in the charge or recharge could have been ascertained immediately after the jury had retired to consider their verdict. In short, when the jury returned and asked for additional instruction which the court gave, in part from the original written charge and in part outside thereof, and refiled the original charge and reduced the part of the recharge given outside of the original charge to writing, and then read it to the jury, and filed it with the clerk, the court did not commit reversible error. Central ofGeorgia Railway Co. v. Perkerson, 115 Ga. 547 (41 S.E. 1018); Bowden v. Achor, 95 Ga. 243, 245, 256 (22 S.E. 254).

The mere fact that several months after the trial and before the motion for new trial was heard, the judge, at the request of counsel for the defendant, certified as correct and filed with the clerk a transcript of his recharge (containing parts of his original charge which he had reread in his recharge), which transcript was unnecessarily taken down by the court's reporter, does not constitute reversible error in view of the fact that none of the transcript contradicts the certificate of the trial judge that "the court did not, either in the original charge or in the recharge to the jury, deliver any charge whatsoever except that which had been written out, and which had been filed with the clerk." As to the issue of writing out, reading, and filing the charge or recharge delivered to the jury, which is raised in this ground of the motion, the transcript of the stenographic notes was not material. It may be that the judge wished to allow counsel for the defendant and the courts the opportunity to compare the stenographic transcript, purporting to show what the judge reread in his recharge from the original charge, with the original charge itself, and when we make such a comparison, the two correspond with each other verbatim. The question is whether or not the judge (not the reporter) reduced the charge and recharge to writing before reading it to the jury and then filing it with the clerk. The facts that the reporter took stenographic notes thereof and transcribed them, and that they were not filed until several months later are immaterial and do not affect the merits of this ground.

9. The general grounds are not argued or mentioned in the briefs of the plaintiff in error. However, the evidence authorized the verdict.

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

ON MOTION FOR REHEARING.