Ricks v. State

28 S.E.2d 303, 70 Ga. App. 395, 1943 Ga. App. LEXIS 321

• Court: Court of Appeals of Georgia
• Decided: November 10, 1943
• Docket: 30172.
• Status: Published

Opinions

MacIntyre, J.

.An indictment, charging the use of obscene language in-the presence of a female, was found in the superior court of Bibb County, and by that court transferred to the city court of Macon. The following plea in abatement, properly sworn to, was filed to the indictment: “Because the indictment does not show that it has ever been filed in the superior court of Bibb County, Georgia, and entered and recorded on the minutes of Bibb superior court, as is required by law, and the indictment does not have on its face the stamp of authenticity.; it not appearing that said indictment was legally returned in the superior court of Bibb County, Georgia, and filed with the clerk of the Bibb superior court, and by him entered and filed in Bibb superior court, and recorded on the minutes of Bibb superior court. Copy of indictment attached hereto and made part hereof.”

On the back of the indictment were the following entries: “No, 47019. No. 3891. Bibb superior court, April term, 1942. The State vs. Emmett Ricks. Entered on the minutes, book 27, pages 782, 792. Using obscene language in presence of female. True bill, 5/21/42. M. J. Witman, foreman, Mrs. Judy McCoy, prosecutor. Chas. H. Garrett, solicitor-general. Filed in office, May 26, 1942, H. Elmo Simmons, deputy clerk. Witnesses: Mrs. Judy McCoy, 717 Cherry St.; Carrie Livingston, 159 B. Way; Bobby Cheek, Quality Lunch Room, B-Way, near Poplar St. Officer Ben Ong; Mr. T. O. Moseley, Mgr. Arlington Hotel. The defendant, Emmett Ricks, waives formal arraignment, and pleads not guilty. This June 25th, 1942. O. L. Long, Solicitor C. C. M. We, the jury, find the defendant guilty, this 26th day of June, 1942. Melvin Harp, Foreman.”

Among the other parts of the record specified by the defendant in the bill of exceptions as material to a clear understanding of the errors complained of are: “The indictment, with the entry in the city court of Macon, entered on the minutes, book 27, pages 782, ■792, and with the entry of filing in the clerk’s office of the city court of Macon on June 26th, 1942, signed H. Elmo Simmons, deputy clerk . . [and an] order dated May 26, 1942, transferring ease No. 3891, State v. Emmett Kicks, from the superior court of Bibb County to the city court of Macon.”

The order transferring said case, as it appears in the record transmitted to this court, is as follows: “Bibb superior court, April term, 1942. On motion of the solicitor-general, the following cases, which are misdemeanor cases, pending in this court, are hereby transferred to the city court of Macon: 3891, Emmett Kicks, using obscene language in the presence of female; 3887, John Lowe, bribery; 3879, E. C. Darity, receiving stolen goods. It is further ordered that* the clerk of this court transmit to the city court of Macon the indictments in said cases, and all other papers connected therewith, together with a certified copy of this order. In open court, this May 26th, 1942. A. M. Anderson, Judge S. C. M. C. Charles H. Garrett, Solicitor-General. Georgia, Bibb County. Clerk’s office, Bibb superior court: I, C. G. Sloan, deputy clerk of said court, in and for said county, do certify that the foregoing is a true and correct copy of the original order passed by the court transferring the above stated cases to the city court of Macon, just as the same appears of file and recorded in this office. In witness whereof, I hereby and hereunto set my official signature and the seal of said court, this May 26th, 1942. O. G. Sloan, deputy clerk, Bibb superior court. Filed in office, May 26, 1942, J. Hairy Burns, clerk.”

Georgia Laws, 1884-85, p. 476, § 31, provides: “Be it further enacted, That the judge of the superior court may send down from the superior court of Bibb County all presentments and bills of indictments for misdemeanors to said city court for trial, the order so transmitting such cases to be entered on the minutes of both of said courts.” It is presumed that the officers did their duty, and entered the order transferring this case on the minutes of both courts. In some superior courts the entry, “received in open court from the bailiff of the grand jury,” dated and signed by the clerk, is made on the back of the indictment. In the instant case the entry on the back of the indictment [described as the front page thereof-by the defendant] is: “True Bill 5/21/42,” and if the minutes of the superior court show that the indictment was legally returned in open court, filed, entered, and-recorded on the minutes, the plea in abatement is not good. The objection urged is that the indictment itself, with the entries thereon, does not show all of these things. When a paper purporting to be an indictment, and having the stamp of authenticity on its face, is transferred by an order of the superior court reciting that such case is pending in that court, and the transfer is otherwise in .accordance with the rules of law applicable- to a transfer of a valid indictment in such a case, it seems to us that this raises the presumption that the indictment was found and returned in the superior court as required by law.

: The indictment with the entries thereon was attached to the plea in abatement as an exhibit, and made a part of the plea; and the indictment and entries, when considered with relation to one another and as an entity, give the indictment the stamp of authenticity on its face. “Judicial knowledge is' not reached by the use of evidence; it is a matter pertaining to the judicial function and its existence, like that of an admission, stipulation, or rule of presumption, dispenses with evidence as to the point covered.” 31 C. J. S. 519,, § 13(a). The stamp of authenticity borne by the indictment on its face, the rule of presumption, and the doctrine of judicial cognizance, when applied to the plea in abatement, in this case, authorized the judge to hold that the plea, which merely alleged that the indictment itself did not show on its face that it was properly returned, was not sufficient; and the judge did.not commit reversible error in “disallowing the plea.” However, the proper practice would have been to have overruled the plea. Wells v. State, 118 Ga. 556 (6) (45 S. E. 443). It should be noted that the plea does not allege that in truth and in fact the indictment was not properly returned; but only that the indictment itself did not show that it was properly returned. The eases of Zugar v. State, 194 Ga. 285 (21 S. E. 2d, 647), and Sampson v. State, 124 Ga. 776 (53 S. E. 332, 4 Ann. Cas. 525), cited in the brief of the defendant, are clearly distinguishable by their particular facts from the instant case.

Section 26-6303 of the Code provides that any person who, without provocation, uses obscene, vulgar, or profane language in the presence' of a female, shall be guilty of a misdemeanor. The charging part of the indictment alleged that on the 28th day of April, 1942, 'the defendant “did then and there unlawfully and with force of arms, without provocation, use certain obscene language in the presence of a female, the said female being Mrs. Judy McCoy, the substance of said language being as follows: 'Come here baby and kiss me, I am going to get into your pants/ meaning that he was then and there proposing sexual intercourse with said female.” The defendant demurred to the indictment on the ground that it did not charge the use of obscene and vulgar language. The demurrer further attacked the indictment because the words alleged to have been used are not obscene and vulgar. The words alleged to have been used were, “Come here baby and kiss me, I am going to get in your pants.” It is alleged by innuendo that the accused meant • to propose sexual intercourse. The demurrer attacked the innuendo as being merely a conclusion for the reason that the words alleged to have been used did not warrant such innuendo or construction. Words get their proper meaning almost entirely from the time, place, circumstances, and the intent with which they are used. We think that* the language alleged in the indictment to have been used in the presence of a female, when considered in connection with the allegations by way' of “inducement” or explanation, was obscene and vulgar within the meaning of the statute, and that the court did not err in overruling the demurrer. Holcombe v. State, 5 Ga. App. 47 (62 S. E. 647); Roberts v. State, 120 Ga. 177 (47 S. E. 511).

The defendant objected to that part of the testimony of Mrs. Judy McCoy in which she testified that in March, 1942, the defendant said to her and in her presence: “When are you going to give me a date with you ?” on the ground that the State could not put the accused on trial for the language charged in the indictment, and then embarrass and prejudice him by proving that at a different place, and on a different date, he used wholly different and dissimilar language from that charged in the indictment. The intention of the defendant, in using the language charged in the indictment, and the purpose for which he used it, when addressed to the female, constitute the offense in the instant case. Dillard v. State, 41 Ga. 278, 281. And we think the language objected to, which was used about a month before the language charged in the indictment, was admissible as tending to show the intent and purpose of the defendant, when he made the statements charged in the indictment. The two statements, both made to the prosecutrix, the one objected to, and-the one for which he was being tried, are so connected in time and circumstances, and are so similar in their other relations, that the same motive may reasonably be imputed to both, and the statement objected to was properly admitted in evidence. In short, the testimony was admissible as tending to illustrate the intent of the defendant in the transaction for which he was being tried, and not for the purpose of proving two separate crimes. Farmer v. State, 100 Ga. 41 (28 S. E. 26). We think that the objection to this testimony was properly overruled.

Section 38-1803 of the Code provides: “A witness may be impeached 'by contradictory statements previously made by him as to matters relevant to his testimony and to the case.” Thus one method of impeaching a witness is by showing that he made statements out of court at variance with his testimony on the witness stand. And when an attempt is made to impeach a witness by this method, whether such attempt, as in all other attempts to impeach a witness, is successful, is for the jury. If the jury believe from the evidence that any witness in the case has made statements at any other time or place at variance with his testimony in the case, they have the right to take such facts into consideration in determining the weight to be given the testimony of such witness; and though not required to do so, they could, or might reject the testimony of the witness entirely. King v. State, 163 Ga. 313, 322 (136 S. E. 154). And thus when instructing the jury on the method of impeachment provided for in the-Code, § 38-1803, that a witness may be impeached by contradictory statements previously made by him as to matters relative to his testimony and to the case, “it is error for the court to instruct the jury that if they believe a witness has made previous statements contradictory to his testimony delivered on the trial, such testimony should be disregarded, unless it is corroborated by other credible evidence, or is corroborated by the proven circumstances in the case/ ” Waycaster v. State, 136 Ga. 95 (3) (70 S. E. 883). The instructions in the instant case, as they relate to this provision .of the Code were not calculated to lead the jury to believe that the testimony of a witness, who had made previous statements contradictory to his testimony delivered on the stand, should be disregarded, unless it is corroborated by other credible evidence, or by other facts and circumstances proved on the trial.. The instructions here referred to are not error in that they led the jury to so believe. It would be otherwise if the instructions were confusing and were calculated to lead the jury to so believe. We think that neither the instruction as to the method of impeachment under the provisions of the Code, § 38-1803, nor the instruction relative to the other methods of impeachment referred to in the charge, was, for the reasons assigned, subject to any of the exceptions made in special grounds of the motion for a new trial. Smaha v. George, 195 Ga. 412 (24 S. E. 2d, 385).

Special grounds 3, 5, and 7 will be discussed in this division of the opinion. The court charged the jury in part as follows: “ Gentlemen, I will read to you the statute of our State under which this indictment has been prepared, and at the outset call your attention to the fact that this defendant is charged in the indictment only with using obscene language in the presence of females, but I will read to you the entire section: ‘Any person who shall, without provocation, use to or of another, and in his presence, opprobrious words or abusive language, tending to cause a breach of the peace, or who shall, in like manner, use obscene and vulgar or profane language in the presence of a female, or any person 'who shall communicate to any virtuous female within this State by writing or printing any obscene or vulgar language or improper proposals, or by indecent or disorderly conduct in the presence of females on passenger cars, street cars or other places of like character, shall be guilty of a misdemeanor. [Now, obscene and vulgar language as used in the statute includes any foul words which would reasonably offend the sense of modesty and decency of the woman in whose presence-the words were spoken, if they were, under all the circumstances of the case as you find them to exist. Language tending to incite illicit sexual intercourse is obscene and vulgar]. (Now, should you find beyond a reasonable doubt that the defendant did, without provocation, state to the prosecutrix substantially the words set out in the indictment, intending thereby to propose illegal or sexual intercourse, and this was done in her presence, you would convict the defendant of using obscene language in the presence of a female; but should you find he did not use such alleged words in the presence of the prosecutrix, then you would acquit the defendant of the charge involved).” The defendant excepted to that part of the charge above quoted enclosed in brackets: 1. Because the court instructed the jury, as a matter of law, that certain words were obscene and vulgar, and that that being an expression of an opinion by the trial judge, it was error. 2. It was likely to impress the jury with the court’s opinion that the accused had used words in this case which tended to incite illicit sexual intercourse, and which were obscene and vulgar. 3. It is the province of the jury to determine whether certain words were obscene and vulgar, considering all the circumstances of the case, and the court instructed the jury that words tending to incite illicit sexual intercourse were obscene and vulgar under any and all circumstances. 4. Because, the court charged if the words or language offended the sense of modesty and decency of the woman in whose presence the words were used, no matter how prudish a particular woman might be, the words would be legally obscene and vulgar; whereas, under the law, words are not obscene or vulgar, unless calculated to offend a reasonable and ordinarily sensible person.

He further excepted to that part enclosed in parenthesis for the following reasons: “1. Because the court stated as matter of law the language alleged was obscene, thus withdrawing from the jury their right to determine as matter of fact, considering the circumstances, whether the language was obscene or not. 2. Because the court instructed the jury to convict the defendant if the jury considered the language obscene; whereas, the statute says the language must be obscene and vulgar. 3. Because the charge of the court stated that language intended to incite sexual intercourse or propose sexual intercourse was a violation of the law and required a conviction, which is not the law.” In Holcombe v. State, supra, it is stated: “ Of course, language tending to incite sexual intercourse is obscene and vulgar.” And in Dillard v. State, 41 Ga. 281 (supra), it is said: “The following words, spoken by the defendant to, and in the presence of a female, without provocation, ‘Will you go to bed with me?’ was obscene and vulgar language within the meaning o'f the statute.” In charging the jury in that part of the instruction above quoted in brackets, that “language [not necessarily the words used in the instant case, but any words] tending to incite illicit sexual intercourse is obscene and vulgar,” the court was confining himself to the abstract, and did not refer to the particular words used in the indictment. Thus he was not expressing any opinion as to what had or had not been proved. (Brackets ours.) Edwards v. Atlanta, Birmingham and Coast Railroad Co., 63 Ga. App. 212, 217 (10 S. E. 2d, 449). In the instant case the judge charged a correct abstract principle of law, and instructed the jury with reference to the concrete, and enumerated the action and conduct constituting all of the elements of the offense charged in the indictment; and then further instructed the jury that if they should find these elements to be proved beyond a reasonable doubt, such acts and conduct would be sufficient to authorize the conclusion that the defendant was guilty of the crime charged. Instructions must be examined with relation to one another and as an entirety, and when the instructions in the instant case are so examined, we think that the judge was within the rule laid down in Keener v. State, 18 Ga. 194, 230 (63 Am. D. 269), that, “It is the duty of the judge to declare to the jury what the law is, with its exceptions and qualifications; and then to state hypothetically, that if certain facts, which constitute the offense, are proved to their satisfaction, they will [be authorized to] find the defendant guilty; otherwise, they will acquit him.” Cammons v. State, 59 Ga. App. 759, 762 (2 S. E. 2d, 205). The exceptions, as stated in this division of the opinion, to the excerpts in brackets and parentheses in that part of the charge quoted above do not require the granting of a new trial. The fact that the woman in whose presence the obscene language was used was prudish might, under some circumstances, be a circumstance affecting the inquiry in an offense such as is here charged, but there is no evidence in this case to raise such an issue. The testimony here is merely that she was a woman, the wife- of a man other than the defendant. And the court was not required to charge that the proof must show that she was a reasonable, ordinary, sensible person. Pierce v. State, 53 Ga. 365, 370.

Special ground 6 sets out that there was a written request to charge by the defendant, and shows that the court charged that the State must prove beyond a reasonable doubt that the accused used the language, or substantially the language, set out in the indictment, in the presence of the female prosecutrix to authorize a conviction. However, the defendant sought to have the court charge that' the State must prove beyond a reasonable doubt that the accused used the language set out in the indictment to authorize a conviction. We think that the court charged the correct prin-1 ciple of law when he instructed that the State must prove the language, -or substantially the language that the State alleged was obscene; and that the request of the-defendant to charge that the State must prove the exact language alleged in the indictment to be obscene was incorrect. Thus the failure tó charge as requested by the defendant was not erroneous.

Special ground 9 complains that the court erred in admitting testimony by the State for the purpose of showing the good character of the prosecutrix, who testified in the case. A witness, Lowe,testified, in effect, that Judy McCoy, prior to the trial of the casej told him that she would settle -the case for $100 on her own initiative, and that he thereafter submitted the proposition to the defendant; that Lowe did not propose the settlement as stated prior to the trial by Judy McCoy. It was inferable from the evidence that the defendant contended; (1) That Judy McCoy, the prosecutrix^ began the prosecution for the purpose of unlawfully obtaining money from the defendant, in an effort to unlawfully settle a criminal case; or, (3) hoping to allay any suspicion that might have been created because of the- statement of her intimacy with the defendant and with some soldier; and that the defendant’s counsel, in his opening statement to the jury, in giving an outline of the defendant’s case and contentions to the jury, stated that the de-^ fendant would undertake to show and prove the contentions above stated. Thus the statement of Judy McCoy, prior to the trial, as testified to by Lowe, was contradictory to her testimony at the trial. There was also a conflict between the statement of Judy McCoy made before the trial, as testified to by her mother-in-law, a witness for the defendant, and the testimony of Judy McCoy on the trial. The former being that Judy McCoy opened the discussion with the mother-in-law, as to whether to accept the proposition of a settlement of the case for $100; the latter being, in effect, that-the mother-in-law opened the discussion of settling the ease, and that Judy McCoy replied by asking the advice of her mother-in-law. Thus the statement of Judy McCoy before the trial, as testified to by her mother-in-law, was- contradictory to her testimony at the trial, as to who first.<proposed the settlement. By command of section 38-1803 of the Code, where it is sought to impeach a witness by proof of contradictory statements, the witness may be sustained by evidence of good character. McBride v. State, 150 Ga. 92 (102 S. E. 865); McEwen v. Springfield, 64 Ga. 160. Hence it was not error for the court in the instant ease to allow evidence of good character of the witness, Judy McCoy, and to charge On the effect of proof of such good character. Pulliam v. Cantrell, 77 Ga. 563, 568 (3 S. E. 280); Miller v. Western and Atlantic R. Co., 93 Ga. 480, 481 (21 S. E. 52).

The State took the position that the McCoys, who all agreed “are not much,”. allowed a situation with reference to their associations with the negro to develop to such an extent that the negro had the nerve to attempt sexual relations with young Mrs. Judy McCoy, and thought that he could do so in safety; and that Judy McCoy was young and had been led into this bad situation by marrying into the family. The evidence for the State, if credible, was sufficient to support the verdict. The jury being the judges of the weight of the evidence, this court can not disturb the judgment refusing a new trial. Teel v. State, 61 Ga. App. 576 (6 S. E. 2d, 794); Aycock v. State, 62 Ga. App. 812 (10 S. E. 2d, 84).

Judgment 'affirmed.

Broyles, C. J., and Gardner, J., concur.