Smith v. State , 15 Ga. App. 713 ( 1915 )

Broyles, J.

John Smith was convicted in the city court of Floyd county of the offense of selling whisky, and he excepts to the judgment overruling his motion for a new trial. In addition to the . usual general grounds, there are two special grounds in the motion.

1. It is contended that the court erred in the admission of the evidence of C. I. Harris, chief of police, who testified: “I have not known of his [the accused] doing any work this year. I have seen him standing around on the streets, and around the stable near his house on Second avenue. If he works any I don’t know it. So far as I know, he don’t do anything.” It is contended that this evidence was immaterial, irrelevant, and prejudicial to the accused, and that it was an attempt to prove a different offense, to wit,— vagrancy.' In our opinion this evidence was immaterial and irrelevant, but not prejudicial to the accused; and, the trial being otherwise free from error, and the evidence strongly indicative of guilt, this court would not be justified in a reversal because of such harmless error. The relevant evidence strongly authorized the conviction of the defendant. In Griffin v. State, ante, 552 (83 S. E. 872), where the defendant was being tried for keeping intoxicating liquors on hand at a place of business, this court held that “on the trial of a criminal case, as a general rule, it is error to allow proof tending to establish the defendant’s guilt of a different crime from that with which he is charged in the indictment or accusation ; but the testimony in this case, to the effect that the defendant had not done any work ‘for some time,’ to which the defendant objected on the ground that ‘it virtually placed him upon trial on the charge of vagrancy and tended to prejudice the minds of the jurors against him,’ was not sufficient to create the inference that he was guilty of that crime, in the absence of evidence that he had no property or other means of support and was able to work (Penal Code, 1910, § 449). . . If the admission of this testimony was error, the error was not of such materiality as to require a new trial.” See also Turner v. State, 138 Ga. 808 (3), 813 (76 S. E. 349); Watson v. State, 136 Ga. 236 (2), 238 (71 S. E. 122); Mixon v. State, 7 Ga. App. 805 (6), 808 (68 S. E. 315); Whitley v. State, 8 Ga. App. 165 (68 S. E. 863); Garnett v. State, 10 Ga. App. 109 (5), 114 (72 S. E. 951).

2-3. It is also insisted that the court erred in allowing1 the ease, over the objection of the accused, to be reopened, after both sides had closed, and the opening argument for the State had been made, and after the court had taken a recess over-night, and after the defendant had discharged all of his witnesses; and also because, while, upon the calling of the case for trial, at the request of counsel, all tire witnesses had been sworn and put “under the rule,” the witness Broacli, who testified after the reopening of the ease, had not been so sworn or sequestered, but had remained in the court-room, and had heard part of the testimony and the statement of the accused. It does not appear from the record that the plaintiff in error made any motion to the court for time to recall his witnesses, or to meet this new evidence. The court not having denied him this right (to which, in our opinion, he was clearly entitled), there was no error in allowing the case to be reopened and Broach’s testimony to be received. It is always proper for the court to permit a witness to testify, although he was not sworn and sequestered with the other witnesses, but remained in the court-room and heard the testimony and the defendant’s statement. See Thomas v. State, 7 Ga. App. 615 (67 S. E. 707); Dennis v. State, 10 Ga. App. 219 (73 S. E. 35); Merritt v. State, 134 Ga. 263 (67 S. E. 797). And it is within the sound discretion of the judge in the interest of truth and justice, to permit a case to be reopened at any stage of the trial, before the rendition of the verdict, for the purpose of receiving further material evidence; but he should, of course, give either side, if requested so to do, reasonable opportunity to meet and rebut, if possible, such new testimony. Glasco v. State, 137 Ga. 336 (73 S. E. 578); Caswell v. State, 5 Ga. App. 483 (3), 486 (83 S. E. 566); Abbott v. State, 11 Ga. App. 43 (5), 44 (74 S. E. 621); Chatman v. State, 8 Ga. App. 842 (2), 845 (70 S. E. 188). In the Chatman case it was well said that “a case should be reopened whenever it is necessary in order to obtain the truth.”

4-5. The evidence authorized the verdict. The fact that Charles Johnson, the main witness for the prosecution, was employed by the City of Borne to catch “boot-leggers,” or “blind-tigers,” at a salary of $5 per day (which he admitted was the largest wages he ever received), was a circumstance to be considered by the jury in passing upon the credibility of his testimony; but as he was unimpeached, and his evidence, if true, clearly established the defendant’s guilt, and the jury, as appears from their verdict, having evidently believed him, the court did not err in refusing a new trial on the ground that the verdict was contrary to the law and the evidence and without evidence to support it. Ford v. State, 13 Ga. App. 68 (78 S. E. 782); Walker v. City of Atlanta, 10 Ga. App. 28 (72 S. E. 511); Dewberry v. State, 9 Ga. App. 822 (72 S. E. 282); Chatman v. State, supra; Waycaster v. State, 136 Ga. 95 (70 S. E. 883); Solomon v. State, 10 Ga. App. 469 (73 S. E. 623); Williams v. State, 9 Ga. App. 818 (72 S. E. 301); Widener v. State, 9 Ga. App. 302 (70 S. E. 1119). Judgment affirmed.