Sparks v. State

71 S.E.2d 608, 209 Ga. 250, 1952 Ga. LEXIS 462

• Court: Supreme Court of Georgia
• Decided: June 9, 1952
• Docket: 17876
• Status: Published

Opinions

Candler, Justice.

A grand jury in Gordon County Superior Court charged Ludd Sparks with robbery. The indictment in substance alleges that he did, on July 9, 1951, in Gordon County, Georgia, unlawfully, wrongfully, fraudulently, and violently, by force and intimidation, take $580 from the person of J. D. Boling, without his consent and with an intent to steal the same. He was convicted of robbery by force, sentenced to serve a term of from fiva to fifteen years in the penitentiary, and the exception is to a judgment denying his amended motion for a new trial. Held:

1. When the judge, on the trial of a criminal case, reads the indictment to the jury and charges them that the State must prove the penal act, as charged, beyond a reasonable doubt before they would be authorized to convict the accused, as the judge did in this case, his omission to define the offense charged in the precise language of the Code, or his failure also to charge more fully upon the necessary element of intent to steal the money alleged to have been taken, is not erroneous, there being, as here, no timely written request that he do so. Hill v. State, 63 Ga. 578 (36 Am. R. 120); Wilson v. State, 67 Ga. 658, 661; Kinnebrew v. State, 80 Ga. 232 (5 S. E. 56); Thomas v. State, 90 Ga. 437 (16 S. E. 94); Cox v. State, 105 Ga. 610 (31 S. E. 650).

2. A party may not impeach a witness voluntarily called by himself unless he “can show to the court that he has been entrapped by the witness by a previous contradictory statement” (Code, § 38-1801); and he can not impeach the witness by proof of such a statement, even when he claims entrapment, unless the statement was made directly to him or to his attorney (Luke v. Cannon, 4 Ga. App. 538, 62 S. E. 110; Carter v. State, 17 Ga. App. 244, 86 S. E. 413), or was made to some third person with direction to communicate it or for the purpose of being communicated to the party or his counsel, and this was in fact done and the party acted thereon. Jeens v. Wrightsville & Tennille R. Co., 144 Ga. 48, 51 (85 S. E. 1055); Riggins v. State, 67 Ga. App. 309 (20 S. E. 2d, 95). But when a written statement has been given to one who has authority in law to make criminal investigations for the State, the solicitor-general may rely upon it as fully as if it had been made directly to him. 70 C. J. 1068, § 1255; Commonwealth v. Gettigan, 252 Mass. 450 (148 N. E. 113). In this case, after the solicitor-general had stated in his place that he had been entrapped by his witness Buena Pharr, and over an objection that no proper foundation had been laid for its introduction, the court allowed in evidence, for impeachment purposes only, a written statement which the witness, admittedly, had voluntarily given to a named agent of the Georgia Bureau of Investigation. Error is assigned upon this in one of the grounds of the amendment to the motion for new trial. There is clearly no merit in the contention that the admission of the statement, for impeachment purposes only, was erroneous. It was in all material respects contradictory of her sworn testimony as a witness for the State. And it was obtained by and furnished to the solicitor-general for trial use by an agent of the Georgia Bureau of Investigation. That being so, the solicitor had a right to rely upon its truth as fully as he would have had had it been made directly to him by. the witness.

No. 17876. Submitted May 12, 1952 Decided June 9, 1952 — Rehearing denied July 15, 1952. Harbin M. King and John D. Edge, for plaintiff in error. Eugene Cook, Attorney-General, W. Dan Greer and Warren Akin, Solicitor-General, contra.

(a) There is likewise no merit in the contention that the court erred in allowing the aforementioned statement in evidence over an objection by the defendant that it was secondary evidence, since the State’s witness Pharr was present in court and, as a witness for the State, had testified orally. The statement, as the record shows, was offered by the State for impeachment only, and its allowance for that purpose was obviously not improper for the reason here assigned. See, in this connection, Rickerson v. State, 106 Ga. 391 (33 S. E. 639); Nathan v. State, 131 Ga. 48 (3) (61 S. E. 994).

3. The general grounds of the motion are not meritorious, the verdict being amply supported by evidence.

Judgment affirmed.

All the Justices concur, except Atkinson, P.J., not participating, and Head, J., who dissents.