Higgs v. State

Court of Appeals of Georgia

Higgs v. State

107 S.E. 277, 26 Ga. App. 628, 1921 Ga. App. LEXIS 564

CourtCourt of Appeals of Georgia

DecidedApril 13, 1921

Docket12131

StatusPublished

This text of 107 S.E. 277 (Higgs 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

Higgs v. State, 107 S.E. 277, 26 Ga. App. 628, 1921 Ga. App. LEXIS 564 (Ga. Ct. App. 1921).

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Opinion

Broyles, C. J.

The defendant was charged with murder and was convicted of voluntary manslaughter. Counsel for the plaintiff in error, in their brief and. in their oral argument before this court, admitted that the verdict was authorized by the evidence, and they also expressly abandoned every special assignment of error save that embraced in the 3d ground of the amendment to the motion for a new trial. That ground is as follows: “ Because the [629]*629court erred in admitting, over the objection of defendant’s counsel, the testimony of the witness C. W. Williams as to the good character of the deceased, the witness, over said objection, being allowed to testify as.follows: ‘ I knew Mr. Dave Davis in his life; I knew his character and reputation for violence and peaceableness; as to whether he was a peaceable man or a violent man, why he has always been considered a good boy; I have never known him to be fussing, rowing, of .fighting in my life, and I have known him from a baby.’ At the time this evidence was offered by the State, defendant’s counsel objected to the admission of the evidence, upon the ground ‘that it is not the proper subject-matter, of investigation, and is not responsive to the question.’ ■ This testimony was objected to at the time it was offered by the State, upon said grounds, which objection was then and there-urged by defendant’s counsel. The court failed to exclude this evidence from the consideration of the jury, and permitted the same to go to the jury. In order that the court may understand just what took place on the trial with reference to the admission of this evidence, the testimony of Mr. Williams on this subject is quoted verbatim, question and answer, together with the objection made by Mr. W. W. Bennett, counsel for the defendant, as follows, to wit: Q. Did you know Dave Davis in life? A. Yes, sir. Q. Son of Mr. Sin Davis here? A. Yes, sir. Q. How long had you known him? A. I have known him from a child off and on all his life. Q. Did you know his character and reputation for violence and peaceableness? A. Yes, sir. Q. State what it was, whether he was peaceable man or a violent man ? A. Why, he has always been considered a good boy. ■ — Mr. W. W. Bennett: We object to that upon the ground that it is not the proper subject-matter of investigation, and it is not responsive to the question. Q. Just state as to peaceableness or violence, Mr. Williams. A. I have never known him to be fussing or rowing or fighting in my life, and I have known him from a baby.” The ground then sets forth the alleged reasons why the admission of the evidence was error,-but it-does not allege that any of these reasons were urged upon the trial court at the time the evidence was offered. On the contrary, it clearly appears from this ground that the only objection then made was that the evidence “is not the proper subject-matter of investigation, and is not responsive to the question.” Furthermore, it does not appear from the ground [630]*630that counsel objected to the preceding question and answer, to wit: “ Q. Did you know his [the deceased’s] character and reputation for violence and peaceableness?” “A. Yes, sir.” The next questioú propounded to the witness was “ State what it was, whether he was a peaceable man or a violent man ?” And the answer of the witness was, “ Why, he has always been considered a good boy.” Then for the first time the defendant’s counsel interposed an objection, and the objection was as stated above. The first part of this objection, to wit, “ that it is not the proper subject-matter of investigation,” was too general and indefinite to be considered. See, in this connection, Richardson v. State, 141 Ga. 782(2) (82 S. E. 134), and McDonald v. State, 21 Ga. App. 125(6) (94 S. E. 262). It does not appear that the judge made any ruling upon the objection, although it does appear that the evidence was admitted. It appears, moreover, that the solicitor-general took notice of the objection that the answer of the witness was not responsive to the question, and endeavored to meet it by instructing the witness, in effect, just to answer the question. The witness then stated, “ I have never known him [the deceased] to be fussing or rowing or fighting in my life, and I have known him from a baby.” The ground of the motion (construed in the light of the entire ground) does not show that any objection was interposed to this answer. If counsel for the defendant intended for his objection to preceding evidence to apply also to this evidence he should have so stated, so that the court and opposing counsel would have been put upon notice. See, in this connection, Hunnicutt v. Georgia Ry. &c. Co., 26 Ga. App. 407 (106 S. E. 296).

It follows, from what has been said, that the ground of the amendment to the motion for a new trial insisted upon by counsel for the plaintiff in error is without merit, and that the court did not err.in overruling it.

Judgment affirmed.

Dulce and Bloodworth, JJ., concur.

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Broyles, C. J.

The defendant was charged with murder and was convicted of voluntary manslaughter. Counsel for the plaintiff in error, in their brief and. in their oral argument before this court, admitted that the verdict was authorized by the evidence, and they also expressly abandoned every special assignment of error save that embraced in the 3d ground of the amendment to the motion for a new trial. That ground is as follows: “ Because the [629]*629court erred in admitting, over the objection of defendant’s counsel, the testimony of the witness C. W. Williams as to the good character of the deceased, the witness, over said objection, being allowed to testify as.follows: ‘ I knew Mr. Dave Davis in his life; I knew his character and reputation for violence and peaceableness; as to whether he was a peaceable man or a violent man, why he has always been considered a good boy; I have never known him to be fussing, rowing, of .fighting in my life, and I have known him from a baby.’ At the time this evidence was offered by the State, defendant’s counsel objected to the admission of the evidence, upon the ground ‘that it is not the proper subject-matter, of investigation, and is not responsive to the question.’ ■ This testimony was objected to at the time it was offered by the State, upon said grounds, which objection was then and there-urged by defendant’s counsel. The court failed to exclude this evidence from the consideration of the jury, and permitted the same to go to the jury. In order that the court may understand just what took place on the trial with reference to the admission of this evidence, the testimony of Mr. Williams on this subject is quoted verbatim, question and answer, together with the objection made by Mr. W. W. Bennett, counsel for the defendant, as follows, to wit: Q. Did you know Dave Davis in life? A. Yes, sir. Q. Son of Mr. Sin Davis here? A. Yes, sir. Q. How long had you known him? A. I have known him from a child off and on all his life. Q. Did you know his character and reputation for violence and peaceableness? A. Yes, sir. Q. State what it was, whether he was peaceable man or a violent man ? A. Why, he has always been considered a good boy. ■ — Mr. W. W. Bennett: We object to that upon the ground that it is not the proper subject-matter of investigation, and it is not responsive to the question. Q. Just state as to peaceableness or violence, Mr. Williams. A. I have never known him to be fussing or rowing or fighting in my life, and I have known him from a baby.” The ground then sets forth the alleged reasons why the admission of the evidence was error,-but it-does not allege that any of these reasons were urged upon the trial court at the time the evidence was offered. On the contrary, it clearly appears from this ground that the only objection then made was that the evidence “is not the proper subject-matter of investigation, and is not responsive to the question.” Furthermore, it does not appear from the ground [630]*630that counsel objected to the preceding question and answer, to wit: “ Q. Did you know his [the deceased’s] character and reputation for violence and peaceableness?” “A. Yes, sir.” The next questioú propounded to the witness was “ State what it was, whether he was a peaceable man or a violent man ?” And the answer of the witness was, “ Why, he has always been considered a good boy.” Then for the first time the defendant’s counsel interposed an objection, and the objection was as stated above. The first part of this objection, to wit, “ that it is not the proper subject-matter of investigation,” was too general and indefinite to be considered. See, in this connection, Richardson v. State, 141 Ga. 782(2) (82 S. E. 134), and McDonald v. State, 21 Ga. App. 125(6) (94 S. E. 262). It does not appear that the judge made any ruling upon the objection, although it does appear that the evidence was admitted. It appears, moreover, that the solicitor-general took notice of the objection that the answer of the witness was not responsive to the question, and endeavored to meet it by instructing the witness, in effect, just to answer the question. The witness then stated, “ I have never known him [the deceased] to be fussing or rowing or fighting in my life, and I have known him from a baby.” The ground of the motion (construed in the light of the entire ground) does not show that any objection was interposed to this answer. If counsel for the defendant intended for his objection to preceding evidence to apply also to this evidence he should have so stated, so that the court and opposing counsel would have been put upon notice. See, in this connection, Hunnicutt v. Georgia Ry. &c. Co., 26 Ga. App. 407 (106 S. E. 296).

It follows, from what has been said, that the ground of the amendment to the motion for a new trial insisted upon by counsel for the plaintiff in error is without merit, and that the court did not err.in overruling it.

Judgment affirmed.

Dulce and Bloodworth, JJ., concur.

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107 S.E. 277, 26 Ga. App. 628, 1921 Ga. App. LEXIS 564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/higgs-v-state-gactapp-1921.

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