Corbin v. State

58 S.E.2d 485, 81 Ga. App. 353, 1950 Ga. App. LEXIS 894
CourtCourt of Appeals of Georgia
DecidedMarch 3, 1950
Docket32770
StatusPublished
Cited by11 cases

This text of 58 S.E.2d 485 (Corbin v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Corbin v. State, 58 S.E.2d 485, 81 Ga. App. 353, 1950 Ga. App. LEXIS 894 (Ga. Ct. App. 1950).

Opinions

MacIntyre, P. J.

The defendant, Claude Corbin, was indicted for the unlawful possession of dynamite. He was tried, convicted, and sentenced to serve from two to five years in the penitentiary and to pay a fine of $2000. He made a motion for a new trial based upon the general grounds and eight special grounds. The court overruled the motion and the defendant excepted.

1. The defendant contends that the following testimony of the witness Robert H. Cording: “It would take a great deal of force or a terrific explosion' to move a fifteen hundred pound meter a distance of three inches,” was erroneously admitted in evidence over the objection that it was a conclusion of the witness and that the witness had not been properly qualified as an expert to give in his testimony such conclusion or opinion. The fifteen hundred pound meter here referred to was a part of the machinery, or mechanical apparatus, of the White Provision Company. The witness Cording also testified: that he was chief engineer at the White Provision Company, at whose plant the alleged explosion took place; that he had been employed there for about sixteen years; that he had received his education at Carnegie Institute of Technology, from which he graduated in 1923 with a degree in mechanical engineering; that he first worked for Westinghouse installing machinery, etc., then with [354]*354Swift & Company, Construction Department, before he went with White Provision Company; that as chief engineer of the White Provision Company he was charged with the duty of maintenance and repair and installation of all equipment, new buildings, repairs to old buildings, and anything to do with the physical plant, including mechanical devices and electrical apparatus. This witness qualified prima facie as an expert and was entitled to give his opinion on this subject, based upon his observations. Additionally, the witness stated the facts upon which his opinion was predicated. When an expert testifies to facts within his knowledge, it is not necessary that the question propounded be stated hypothetically. An expert may base his opinion upon facts which he knows and has observed. Sims v. State, 40 Ga. App. 10, 13 (148 S. E. 769); McDowell v. State, 78 Ga. App. 116 (50 S. E. 2d, 633); Metropolitan Life Ins. Co. v. Saul, 189 Ga. 1 (2) (5 S. E. 2d, 214); Clary v. State, 8 Ga. App. 92 (2) (68 S. E. 615); Davis v. State, 153 Ga. 669, 674 (113 S. E. 11); Yates v. State, 127 Ga. 813 (56 S. E. 1017); Wallace v. State, 204 Ga. 676 (51 S. E. 2d, 395).

2. Special ground 2 complains of the admission in evidence of the following testimony, over objection: “At the time of the explosion a strike had been in progress about a month. ' It was a very turbulent strike, constant succession of incidents.” The objection made to the admission of this testimony was: “Your Honor, I object to that on the grounds that it’s both irrelevant and immaterial to the issue which is on this bill of indictment.” Irrespective of whether the objection is too general to raise a question for determination by this court (See Owen v. State, 78 Ga. App. 558 (2) (51 S. E. 2d, 602), the evidence was admissible to show motive. In 1 Wharton’s Criminal Evidence (11th ed.), pp. 288, 307, §§ 246, 255, it is written: “Section 246: . . It is, however, always proper for the prosecution to offer evidence of motive. . . An inquiry in this regard is often of great importance, particularly in cases of circumstantial evidence. It assists in fixing the crime upon the proper person, and, in some cases, is strongly instrumental in determining the degree of the offense. . . In the introduction of evidence to show motive, a wide range is permitted. . . Any fact which logically tends to show a motive or which fairly tends to explain [355]*355the actions of the .accused, should be admitted. Thus, evidence of ill-feeling and trouble between accused and the victim of a homicide, or of improper relations or affections of'the accused for the wife of the deceased is admissible. . . Section 255: Evidence of previous quarrels and ill feeling is always relevant to show motive, with the limitation that a connection be shown to exist between the difficulty and the crime charged. . . Quarrels between the families of the accused and of the deceased; dissatisfaction with a previous settlement of wages between the parties , . . may be shown.” The following Georgia cases are in accord with the foregoing principles: Pulliam v. State, 199 Ga. 709 (35 S. E. 2d, 250); Johnson v. State, 130 Ga. 22 (2) (60 S. E. 158); Weldon v. State, 158 Ga. 140 (4) (123 S. E. 217); Ricks v. State, 206 Ga. 20 (55 S. E. 2d, 576).

“On a motion for a new trial on the question of whether a judgment should be reversed on account of the introduction of evidence injected into the case which the defendant contended was irrelevant and immaterial, the defendant’s statement and the whole evidence, properly admitted, that introduced before and that introduced after the ruling on the admissibility of the evidence in question, may be considered in determining the 'relevancy and materiality of such evidence. Fuller v. State, 197 Ga. 714 (2), 718 (30 S. E. 2d, 608); Holland v. Bell, 148 Ga. 277 (2) (96 S. E. 419).” Hardison v. State, ante, 345. Considering the entire evidence, the evidence here objected to was admissible in that it was relevant and material upon the question of motive.

3. Special ground 3 complains of the refusal to. permit the witness Cording, on cross-examination, to answer the following question: “Now, as far as you know, they could have made changes in the physical surroundings of the area between the time you were out there, on Thursday morning, and the time these pictures were made?” The rule is that “ 'the trial judge had a discretion to control the right of cross-examination within reasonable bounds, and an exercise of this discretion will not be controlled by a reviewing court, unless it is abused.’ Rogers v. State, 18 Ga. App. 332 (2) (89 S. E. 460); Granison v. State, 49 Ga. App. 216 (174 S. E. 636); Fields v. State, 46 Ga. App. 287 (3) (167 S. E. 337).” Aycock v. State, 62 Ga. App. 812, [356]*356815 (10 S. E. 2d, 84). We think that the prior cross-examination had sufficiently developed what knowledge the witness had as to whether a change had been made in the surroundings of that area between the time the witness was there on Thursday morning and the time the pictures in question were made and we think that the court did not abuse his discretion in not allowing the defendant to continue this cross-examination on this matter by asking the question here, which was more in the nature of arguing with the witness than in the form of cross-examination. We do not think that the court committed reversible error in not allowing the question to be answered.

4. Special ground 5 complains of the court’s failure to declare a mistrial on account of certain improper remarks made by the assistant solicitor during the progress of the trial. The remarks complained of and the action taken by the court are as follows: [1.] “Q. (By Mr. William Hall, Assistant Solicitor for the State): ‘Mr. Lozier asked you how many explosions that you had observed in your lifetime.

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Corbin v. State
58 S.E.2d 485 (Court of Appeals of Georgia, 1950)

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Bluebook (online)
58 S.E.2d 485, 81 Ga. App. 353, 1950 Ga. App. LEXIS 894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/corbin-v-state-gactapp-1950.