Fisher v. State

20 S.E. 329, 93 Ga. 309

• Court: Supreme Court of Georgia
• Decided: January 27, 1894
• Status: Published

Opinion

Judgment reversed,.

For plea in abatement defendants set up that one of the grand jurors who found the indictment was an agent of the Georgia Railroad & Banking Company (the company named in the indictment), and that that company was the real prosecutor, although the name of Jolin Harris appears as such on the indictment. A demurrer to this plea was sustained, and the defendants excepted. They also excepted to the overruling of their motion for a new trial, after a verdict finding them guilty. This motion alleges that the verdict is contrary to law and evidence, especially in that the proof of venue was insufficient, it not appearing that the car into which the property was testified to have been placed for transportation was broken and entered in Morgan county, and there being testimony that this car left Buckhead (where the. breaking occurred, as testified) unbroken and with the seals intact.

Calvin George, J. B. Park, Jr., and J. H. Holland, by Harrison & Peeples, for plaintiffs in error. H. G. Lewis, solicitor-general, by Hines & Felder, contra.

Another ground is, that the court erred in allowing the State’s counsel to ask John Fisher, a witness for defendants, if he had not been convicted in the courts, and if he had not lived in the Georgia penitentiary, and what was that for; and in allowing Bledsoe, another witness for defendants, to be asked if he had ever been convicted of a crime. The court ruled and instructed the witnesses that they could answer the questions or not, .as they saw proper. It is further alleged that the court erred in allowing witness S. P. Fisher to be asked if he knew his brother N. O. Fisher had been in the penitentiary, and in allowing the State to prove that fact by him, there being higher evidence of the fact.

Another error assigned is, that the court overruled defendants’ motion to suspend the case until the receipt-given to the agent of the Georgia Railroad & Banking Company at Buckhead by the night operator of said railroad at that place on the evening of the alleged-breaking and entering of the car into which the stolen property was placed, and the receipt given to said night operator on the same night by the conductor of a freight-train, for the car in question, could be forwarded from the general freight agent of the railroad at Augusta; it appearing that the agent and operator at Buckhead had been served by defendants with subpoenas duces tecum to produce said receipts, and that they had been forwarded to the general freight agent and were in his custody.