Moore v. State

201 S.E.2d 432, 231 Ga. 301, 1973 Ga. LEXIS 682

Opinions

Nichols, Justice.

Willie George Moore and Joseph Edward Brown were jointly indicted, tried and convicted of three counts of armed robbery and each filed an appeal to this court.

On the trial of the case an alibi witness, in response to questions on direct examination testified in part as follows: "Q. Have you ever been convicted of any crime? A. Yes, I have. Q. What type? A. I was charged here in Athens for shoplifting. Elbert County for shoplifting and Jackson County for armed robbery. I have served my time for all of it.”

The charge to the jury was in part as follows: "Now, Ladies and Gentlemen, under our law a witness may be impeached by proof that the witness has been convicted of a crime involving moral turpitude, a felony. And I charge you that robbery, either armed robbery or robbery, is a felony and that one of the witnesses who has testified in this case, has admitted her conviction of that felony and that her testimony therefore stands impeached. . . If you should determine that any witness has been impeached. . .by proof of a crime involving moral turpitude on the part of the witness... the weight and credit to be given by you to all or any part of that witness’ testimony in this case is for you to determine and in such an event, you may believe such parts of the witness’ testimony and disbelieve such other parts of the witness’ testimony as you may deem proper from all of the evidence submitted to you. Now with respect to any witness who has taken the stand on oath and had not been impeached, in one of these two methods, the law imputes perjury to no one and makes it your duty to reconcile conflicting testimony in so far as you can, by unimpeached witnesses in such a way as to impute perjury to none of them. If this cannot be done, you will then believe that witness’ or those witnesses’ testimony that is most credible to you under the light of all facts and circumstances of the case.. .’’(Emphasis supplied.)

Submitted June 29, 1973 Decided October 26, 1973. James E. McDonald, Jr., Stan Durden, for appellants. Harry N. Gordon, District Attorney, Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, Daniel I. MacIntyre, IV, Assistant Attorneys General, for appellee.

1. The contention is made that the quoted testimony of the witness was insufficient to prove the convictions therein testified to. If objection had been made, it would have been error to admit such testimony. See Howard v. State, 144 Ga. 169 (2) (86 SE 540). The evidence was not only not objected to, but was adduced by the defense. Accordingly, it was admissible as secondary evidence. See Taylor v. State, 83 Ga. 647, 657 (10 SE 442); Norman v. State, 121 Ga. App. 753 (3) (175 SE2d 119).

2. Complaint is made that the italicized portion of the charge had the effect of removing the question of credibility of a witness from the jury’s consideration. While the use of the words "stands attacked” rather than "stands impeached” would have been a better choice of words, yet, under decisions of this court exemplified by Ector v. State, 120 Ga. 543 (48 SE 315); Powell v. State, 101 Ga. 9 (29 SE 309, 65 ASR 277); and Smith v. State, 109 Ga. 479 (35 SE 59), when such excerpt from the charge is considered with the complete charge on the subject of impeachment of witnesses, no reversible error appears.

3. The evidence authorized the convictions and no error of law appearing, they must be affirmed.

Judgments affirmed.

All the Justices concur, except Gunter and Ingram, JJ., who dissent.