Curry v. State

Court of Appeals of Georgia

Curry v. State

79 S.E. 771, 13 Ga. App. 658, 1913 Ga. App. LEXIS 301

CourtCourt of Appeals of Georgia

DecidedOctober 28, 1913

Docket5104; 5105; 5106; 5107

StatusPublished

This text of 79 S.E. 771 (Curry 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

Curry v. State, 79 S.E. 771, 13 Ga. App. 658, 1913 Ga. App. LEXIS 301 (Ga. Ct. App. 1913).

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Opinion

Russell, J.

The same exception to the charge of the court as that presented in the case of Allen v. State, ante, 657 (79 S. E. 169), is raised in the four writs of error now before us, but upon a review of the record it does not appear that the evidence as to these defendants is wholly circumstantial. The deputy sheriff in each of the cases now before us testified positively that he saw the defendants playing and betting for money. It may be that upon a cross-examination of the witness it would have been developed that this statement was a mere conclusion of the witness, as was apparent in Allen’s case. But the presumption is to the contrary, because it is to be presumed that counsel advisedly avoided further inquiry into the extent of the witness’s knowledge, in the interest of his client, rather than that he neglected his duty to that client. For this reason there is a wide difference between the cases of these defendants and that of Allen.

Further exception is made as to the Walkers, in that complaint is made that in the charge of the court their defense was minimized by the statement that the defense of the accused rested in part upon alibi. The court’s expression was not technically correct, for alibi is either a complete defense or no defense; but in the state of the evidence it is not apparent that the accused were injuriously affected by this inapposite statement of the court. Judgment affirmed.

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Russell, J.

The same exception to the charge of the court as that presented in the case of Allen v. State, ante, 657 (79 S. E. 169), is raised in the four writs of error now before us, but upon a review of the record it does not appear that the evidence as to these defendants is wholly circumstantial. The deputy sheriff in each of the cases now before us testified positively that he saw the defendants playing and betting for money. It may be that upon a cross-examination of the witness it would have been developed that this statement was a mere conclusion of the witness, as was apparent in Allen’s case. But the presumption is to the contrary, because it is to be presumed that counsel advisedly avoided further inquiry into the extent of the witness’s knowledge, in the interest of his client, rather than that he neglected his duty to that client. For this reason there is a wide difference between the cases of these defendants and that of Allen.

Further exception is made as to the Walkers, in that complaint is made that in the charge of the court their defense was minimized by the statement that the defense of the accused rested in part upon alibi. The court’s expression was not technically correct, for alibi is either a complete defense or no defense; but in the state of the evidence it is not apparent that the accused were injuriously affected by this inapposite statement of the court. Judgment affirmed.

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Bluebook (online)

79 S.E. 771, 13 Ga. App. 658, 1913 Ga. App. LEXIS 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curry-v-state-gactapp-1913.

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