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MITCHELL v. THE STATE.
34802.
Larceny of automobile. Before Judge Vaughn. DeKalb Superior Court. June 22, 1953.
GARDNER, P. J.
1. (a, b) The exceptions to the judgment overruling the demurrers to the indictment as a whole and the demurrers particularly directed to counts 3, 14, and 40 are without merit for the reasons stated in the body of the opinion.
(c) Special grounds 1 (4) and 11 (14) are meritorious and demand a reversal of the case for the reasons given in the body of the opinion. The other special grounds are without merit.
Roy M. Mitchell (whom we shall call the defendant) was indicted along with his brother, Gordon L. Mitchell, Claude Slayden, and Frank Thomas in one indictment containing 47 counts, each count alleging the theft of an automobile. The defendant severed. He was convicted on three of the counts, namely 3, 14, and 40, and was acquitted on the other 44 counts. Each count on which the defendant was convicted was the same in allegation except as to the car described therein and the owner thereof. Omitting the formal parts, we will quote only one of the counts: "[the defendant did] unlawfully . . . wrongfully, and fraudulently take, steal and carry away, with intent to steal the same, one 1949 Model Fleetline Chevrolet Coach of the value of $1,300.00, the personal property of J. D. Murray." Before pleading to the merits, the defendant filed a demurrer containing three counts, to the indictment as a whole. This demurrer reads: "I. Because the same violates the due process and equal protection clauses of the Federal and State Constitutions, Code 1-815, Which provide as follows: '1-815. (6700) Citizenship. (Section 1.) All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws; and Code 2-102 and 2-103, which provide respectively as follows: '2-102. (6358) Paragraph II. Protection the duty of government. Protection to person and property is the paramount duty of government, and shall be impartial and complete.' '2-103. (6359) Paragraph III. Life, Liberty, and property. No person shall be deprived of life, liberty, or property, except by due process of law,' for the reason that the indictment charges 47 different felonies, committed on different dates, all being for violation of Code 26-260, 3 being for larceny of an automobile, and which provides for a sentence of one to five years, and to reduce same to a misdemeanor, and, under the provisions of Code 27-2511, a finding by the jury that the defendant was guilty under the first count thereof and of any subsequent one or more of said counts would render the imposition of any other sentences than five years in mandatory so that in such indictment this defendant would be denied the night to have the court, in such instance, to apply to him the provisions of the law to give to him a sentence of less than five years, on a conviction on any subsequent count should the jury find him guilty upon the first count or any preceding count thereof.
"2. Because such indictment amounts to a placing of this defendant's character in issue and renders it impossible for this defendant to have a fair trial before an impartial jury, as guaranteed by the provisions of the Georgia Constitution, Code 2-105, which provides that every person charged with an offense against the laws of this State 'shall have a public and speedy trial by an impartial jury.'
"3. Because such indictment joins separate and distinct felonies not growing out of the same transaction, and the same should be quashed and dismissed or the State required to elect in that the same in 47 counts charges this defendant with 47 separate and distinct felonies not growing out of the same transaction, same charging this defendant with the larceny of 47 different automobiles from different persons and On different dates, same not being in anywise connected."
The defendant also filed demurrers to each count of the indictment. We are here concerned with those directed to counts 3, 14, and 40, on which the defendant was convicted. The demurrers to these three counts are identical. We will quote the one directed to count 3, since we have set out the allegations in that count hereinbefore. That demurrer reads: "The defendant demurs to count three of the above indictment and moves that such count be stricken for the reason that the automobile alleged in this count to have been stolen by the defendant is not adequately and sufficiently described and set forth therein; that said allegations are too vague, indefinite and uncertain to charge any specific offense; that the allegations therein that the defendant did take, steal and carry away with intent to steal the same, 'one 1949 model Fleetline Chevrolet Coach of the value of $1,300.00,' the property of J. D. Murray, are too general and indefinite to charge him with the larceny of any particular automobile and subject him to further or continued prosecution for the alleged larceny of a 1949 model Fleetline Chevrolet Coach, and same is defective in that such description of the car alleged to have been stolen does not embrace the motor and serial numbers thereof." The court overruled all of the special demurrers to which reference is made. Exceptions pendente lite were filed to the judgment on the demurrers.
The defendant entered a plea of not guilty to the 47 counts. After the taking of evidence for over five days, the swearing of approximately 100 witnesses, and introducing of documentary evidence and entertaining the defendant's statement, hearing argument of counsel and the charge of the court, the jury returned a verdict of guilty on the three counts hereinabove mentioned. The defendant filed his motion for new trial on the usual statutory grounds and added 11 special grounds. On the denial of the motion thus amended the defendant assigns error.
The questions presented here are: (a) whether or not the court erred in overruling the demurrers to the indictment as a whole; (b) whether or not the court erred in overruling the demurrers to counts 3, 14, and 40; (c) whether or not the court erred in overruling a motion on the statutory contention; (d) whether or not the court erred in overruling the special grounds. We will treat these questions in the order named.
1. (a) So far as the first question is concerned, we have set forth verbatim the demurrers to the indictment as a whole in order that we may determine whether or not they show reversible error in the light of the indictment. Counsel for the defendant called to our attention no decisions to sustain his contentions that the court erred in overruling the demurrers. We have been unable to find any decision anywhere to sustain the contentions on behalf of the defendant on these assignments of error. The court did not err in overruling the demurrers to the indictment as a whole.
(b) We will now discuss the other demurrers to counts 3, 14, and 40. While counsel for the defendant calls our attention to no decision to sustain his contention as to these demurrers, we will state that this court has settled the question adversely to the defendant in Carson v. State, 22 Ga. App. 551 (2) (96 S. E. 500), as follows: "Under the ruling in the preceding paragraph, an indictment for the larceny of an automobile, which charges that the accused 'did wrongfully, fraudulently, and privately take, steal, and carry' away, with intent to steal the same, one five-passenger Ford automobile the value of four hundred ($400.00) dollars and the property of W. C. Jones,' is sufficiently specific in the description of the property stolen, and it is not, subject on that point to a special demurrer." The court committed no error in overruling the demurrer to counts 3, 14, and 40, the counts on which the defendant stands convicted.
(c) Counsel denominates the first special ground as special ground 4. We prefer to call the first special ground, special ground 1. Therefore, we shall put the numbers used by counsel in parentheses following the numbers we prefer to use.
Special grounds 8 and 9 (11 and 12) complain of statements made by the codefendant Claude Slayden in special ground 8, and codefendant Gordon L. Mitchell in special ground 9. This evidence was not inadmissible. The evidence in this record shows that the defendant in the instant case, his brother, Gordon L. Mitchell, and Claude Slayden were joint conspirators, and that the statements made by Claude Slayden and Gordon L. Mitchell were made during the course of the conspiracy and before it was ended. We dealt fully with this question in Mitchell v. State, 86 Ga. App. 292 (71 S. E. 2d 756). There is no point, as we see it, in reiterating this principle of law.
Special ground 10 (13) complains of the admission of photo-static records of certain documents from the State of Georgia Motor' Vehicle Department. These photostatic copies were objected to because they did not come from the proper custodian of such documents and, therefore, they were not sufficiently proven. With reference to these records, Mrs. Inez Kenney testified as follows: "I am the custodian of these records. I brought them out here in response to a subpoena duces tecum." Counsel for the defendant not only contends that the documents did not come from the proper source, but also contends to the effect that they should have been presented to counsel before the trial. There was evidence to the effect that one of the documents was signed by the defendant, Roy Mitchell, in the presence of one Hatfield. We cannot conceive of any reason why these documents were not admissible, not only to prove conspiracy, but to prove the general knowledge and guilt of Roy Mitchell.
We wish to call attention to a statute passed by the General Assembly in 1950 (Ga. L. 1950, pp. 73, 74), which will now be found in the Publisher's Pocket Supplement to the Code of 1933, Code (Ann. Supp.) 38-710, as follows: "Photostats, microphotographs and photographs of original writings: Any photostatic or microphotographic or photographic reproduction of any original writing or record which may be or has been made in the regular course of business to preserve permanently by such reproduction the writing or record shall be admissible in evidence in any proceeding in any court of this State, and in any proceeding before any board, bureau, department, commission or agency of the State, in lieu of and without accounting for the original of such writing or record. Any enlargement or facsimile of such reproduction shall likewise be admissible if the original of such reproduction is in existence and available for inspection under direction of the court or the agency conducting the proceeding." The contention as to special ground 10 (13) is without merit.
We have dealt with all the assignments of error save special grounds 1 (4) and 11 (14), and will now deal with them.
1. Special ground 1 (4) assigns error, on the ground that it was an expression of opinion by the court as to what had been proved in the case, upon the following excerpt from the charge: "The only defendant on trial in this case is Roy Mitchell. The other three defendants are not on trial, but appear in this case as accomplices, as to which the court will charge you and explain further along." The court thereafter, in a charge on conspiracy, stated, "The testimony of a single witness is usually sufficient to establish a fact. An exception to this rule is in the case of a felony where the only witness is an accomplice. In such cases, corroborating circumstances may dispense with another witness." No other charge on the meaning of accomplices was given.
817, 818 (35 S. E. 2d 317). " 'Charles McDonald, of course, admits he is an accomplice. He has filed a plea to this crime; and he being an accomplice in the case of a partner with the defendant, and having admitted to have been there, you would not be authorized to convict James Pope Kryder on the testimony of McDonald alone.' " Kryder v. State, 57 Ga. App. 200 (194 S. E. 890). " 'I believe it is admitted in this case that Tommy Lyons was an accomplice.' " Golden v. State, 45 Ga. App. 501 (165 S. E. 299). " 'Now, you are to determine, gentlemen, whether or not he is an accomplice. He denies having anything to do with the commission of this offense himself; he states that he had nothing to do with it, and was not an accomplice.' " Suddeth v. State, 112 Ga. 407 (37 S. E. 747). Under authority of these cases, a statement that the codefendants "appear in this case as accomplices" is error, and a reversal for such error is mandatory.
Nor do we conceive that the provisions of Code (Ann. Supp.) 38-710--which permit the introduction of photostatic copies of original writings or records made in the regular course of business to be introduced as original evidence in a case--have any bearing upon Code 38-709. Code (Ann. Supp.) 38-710 applies to situations where the contents of the document are sought to be introduced because the document itself has a bearing upon the issues sought to be proved, the test of admissibility being relevancy and materiality. Documents containing signatures introduced under the provisions of Code 38-709 do not necessarily have any bearing upon the issue being tried, and their sole purpose is to establish a criterion by which the genuineness or forgery of the signature on some other document relevant to the cause may be established. In comparing handwriting, not only the size and shape of the letters, but the age of the ink, the pressure exerted, and numerous other factors are taken into consideration by the expert, and, theoretically, by the jury. The photostats in such circumstances do not serve the same purpose as the originals, for which reason submission of photostatic copies does not constitute compliance with the provisions of Code 38-769. Furthermore, some of the documents were not tendered at all, either by original or photostat.
Special grounds 1 (4) and 11 (14) are meritorious and demand a reversal of the case.
We have not considered the general grounds, since the case is remanded for another trial and the evidence might be different.
The court erred in denying the amended motion for new trial.
Judgment reversed. Townsend and Carlisle, JJ., concur.
Roy Leathers, Solicitor-General, Clarence Peeler, Jr., Assistant Solicitor-General, contra.
James R. Venable, John L. Respess, for plaintiff in error.
DECIDED OCTOBER 30, 1953.
Saturday May 23 04:19 EDT


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