Opinion
31656.
DECIDED SEPTEMBER 4, 1947.
Arson; from Crisp Superior Court — Judge Gower. April 26, 1947.
George M. Mixon, Graydon D. Reddick, for plaintiff in error.
Harvey L. Jay, Solicitor-General, contra.
1. It is a well-settled principle of law in this State that juries are the proper judges of the weight and sufficiency of testimony and of the credibility of witnesses. This court will not disturb the verdict of the jury where there is evidence to support its findings. Stricklin v. Crawley, 1 Ga. App. 139 ( 58 S.E. 215); Daughtry v. Savannah c. Ry. Co., 1 Ga. App. 393 ( 58 S.E. 230); Charles v. Brooker, 1 Ga. App. 219 ( 58 S.E. 218); Unity Cotton Mills v. Hasty, 19 Ga. App. 588, 590 ( 91 S.E. 915).
2. When the rule for the sequestration of witnesses under § 38-1703 of the Code has been invoked, it is ordinarily in the discretion of the court to allow a party's witness to remain in court and assist in the trial, he being the first witness examined for the State. Talley v. State, 2 Ga. App. 395 ( 58 S.E. 667); City Electric Ry. Co. v. Smith, 121 Ga. 663 ( 49 S.E. 724).
3. It is error to permit a witness, over timely objection, to testify to a conclusion, the facts stated by such witness from which he drew such inference not constituting ample evidence to support the same, and the testimony as to the conclusion being prejudicial. Code, § 38-1708. Central of Ga. Ry. Co. v. Butler Marble Co., 8 Ga. App. 2 (8) ( 68 S.E. 775); Cornelia Planing Mill Co. v. Wilcox, 129 Ga. 522 ( 59 S.E. 223).
4. When a defendant is charged with the violation of a penal statute containing disjunctively several ways or methods a crime may be committed, proof of any one of which is sufficient to constitute the crime, the indictment, in order to be good as against a special demurrer, must charge such ways or methods conjunctively if it charges more than one of them. Cody v. State, 118 Ga. 784 ( 45 S.E. 622); Statham v. State, 50 Ga. App. 165 (2), 167, 168 ( 177 S.E. 522). Accordingly, on the trial of a defendant under an indictment so charging, it is not incumbent upon the State to prove all of such separate ways or methods alleged in the indictment, but the State makes a prima facie case upon its establishment by proof of any one of them.
DECIDED SEPTEMBER 4, 1947.
Arnie Lee Jones was indicted by the Grand Jury of Crisp County at the January term, 1947 of the superior court of said county, for arson; for that said Arnie Lee Jones, on November 5, 1946, in the county aforesaid, did then and there, unlawfully and with force and arms, wilfully, feloniously, and maliciously, and with intention to defraud, set fire, and burn, and cause to be burned a certain unoccupied dwelling house, the property of Mrs. R. S. Sheppard and situated on her farm, including land lot number 146 in the 11th district of Crisp County, Georgia. On February 12, 1947, the defendant entered a plea of not guilty to said charge and was placed on trial.
R. E. Lee, the first witness for the State, swore that Mrs. R. S. Sheppard was his mother-in-law; that she operated said farms in Crisp County, and he rented a farm from her, paying standing rent; that said farm, including lot 146 in the 11th district of said county, is under his supervision; that on November 5 an unoccupied house on said farm was completely destroyed by fire. This house had some furniture in it. It burned about midnight. He also testified that he knew Arnie Lee Jones, who lived on a farm adjoining, several years ago; Jones had worked with the witness at times, but was not working for him at the time the house was burned; that he and the defendant had had some trouble; it was about some stumps the witness had dug and pulled and had brought to his house for kindling; he missed them, and when he asked the defendant about them, the defendant denied any knowledge of the stumps; that the witness saw the stumps at the defendant's woodpile and demanded their return, and the defendant returned one stump. He testified that there was bad feeling existing towards him on the part of the defendant. The witness further testified, upon cross-examination, that he thought that this fire and burning by the defendant was over one stump. Ella Mae Gray testified in substance that the defendant came to her house a short time before the fire occurred and asked for some matches and splinters, and stated that he was going to burn this house, and that he immediately left her house and went straight to the house of Mr. Lee, which was only a short distance from where she lived, and she saw him set the house on fire. The witness also testified that she saw Arnie Lee Jones after the fire, and that he told her he had burned the house and was mad with Mr. Lee, and that if she said anything about it he would kill her. Leroy Gray, husband of Ella Mae Gray, also testified that Arnie Lee Jones came to his house shortly before the fire, and asked for some splinters and a match; and that about ten minutes after he left his house the house of Mrs. Sheppard was burning. He stated that he also had a conversation with Arnie Lee Jones the following day, and that Arnie Lee had told him that if he said anything about it he would kill Gray.
The Sheriff of Crisp County testified that he arrested Arnie Lee Jones and that he was hiding in a closet in his home at the time of the arrest. There was testimony that the house was worth approximately $700 and was uninsured. The defendant made a brief statement, in which he said he knew nothing about the house being set afire, and that he did not have anything against Mr. Lee, and did not know anything about the fire until the next morning. His mother and brother testified that on the night of the fire Arnie Lee Jones was at his home.
The jury returned a verdict of guilty and fixed the defendant's sentence at not less than 2 or more than 4 years in the penitentiary, and the defendant was accordingly sentenced by the court. The defendant filed a motion for new trial on the general grounds, which were later amended by 4 special grounds. The trial judge overruled the motion for new trial as amended, and error is assigned on this judgment.
1. Special ground 3 being an amplification of the general grounds, the same are considered together. While the testimony of Ella Mae Gray contains many discrepancies that would have authorized the jury to have disregarded it entirely, yet they were authorized, if they saw fit to do so, to believe her. "The jury are the proper judges of the weight and sufficiency of testimony and of the credibility of witnesses, and this court will not disturb the verdict of a jury where there is evidence to support its findings. . . Stricklin v. Crawley, 1 Ga. App. 139 ( 58 S.E. 215); Charles v. Brooker, 1 Ga. App. 219 ( 58 S.E. 218); Daughtry v. S. S. Ry. Co., 1 Ga. App. 393 ( 58 S.E. 230)." Unity Cotton Mills v. Hasty, 19 Ga. App. 588, 590 (supra). The evidence authorized the verdict.
2. Special ground 1 complains of the action of the court in the course of the trial, when the witnesses were sworn and the rule for sequestration was invoked under Code, § 38-1703, and the court permitted, over objection of the defendant's counsel, R. E. Lee, a witness for the State, to remain in court; it being contended that the presence of said witness, a white man and in charge of the property on which the arson is alleged to have been committed, would intimidate the colored witnesses for the State who lived on said property. This court can see where, under some circumstances, such a condition might develop that would result in the defendant not receiving a fair trial. However, the trial court, having all the parties before it, is in better position to determine this question than this court. The codifiers no doubt considered this angle in placing this section in the Code, containing the language, "The court shall take proper care to effect this object as far as practicable and convenient." The trial court, on motion of defense counsel of this nature, should look carefully into the circumstances and rule so as to insure a fair trial for both the State and the accused. However, it is a matter within the discretion of the trial court. Talley v. State, 2 Ga. App. 395 (supra); City Electric Ry. Co. v. Smith, 121 Ga. 663 (supra).
3. Special ground 2 assigns error on the testimony of R. E. Lee, a witness for the State, over timely objection, that there was bad feeling toward him on the part of the defendant. Section 38-1708 of the Code provides as follows: "Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor; but if the issue shall be as to the existence of a fact, the opinions of witnesses, generally, shall be inadmissible." The evidence discloses that the witness Lee had rented the land on which the house in question was located. He was permitted by the court to remain in court, although the rule for the separation of witnesses had been invoked. He was not listed on the indictment as a prosecutor, but his interest in the case was such that he occupied the role of prosecutor. The state of the feelings of the defendant toward him was material as a circumstance tending to show motive. However, the state of the defendant's feelings toward the witness is not a question of opinion, but is an issue as to the existence of a fact. The evidence was, therefore, inadmissible. Since under some circumstances such inadmissible evidence is harmful and under other circumstances harmless, we must look to the particular circumstance surrounding the introduction of this evidence and determine whether or not the same was harmful to the defendant. The expression of the opinion of a witness amounting to a conclusion is harmless where there is ample evidence to support the inference. Central of Ga. Ry. Co. v. Butler Marble Co., 8 Ga. App. 2 (8) (supra); Fundy v. State, 30 Ga. 400. See also Cornelia Planing Mill Co. v. Wilcox, 129 Ga. 522 (supra). The evidence of Mr. Lee in the instant case, from which he sought to draw the inference, was to the effect that he had pulled some stumps which he intended to have hauled to his house or into town to be used for kindling; that, upon missing some of the stumps and being informed that they were at the house of the defendant, he investigated and, finding the stumps at the house of the defendant, notified him to have the stumps back where he got them in fifteen minutes. The defendant returned the stumps to his farm. In our opinion this evidence does not show that the witness knew what the state of the feelings of the defendant was toward him. The assignment of error is sufficient and nothing in Clare v. Drexler, 152 Ga. 419 ( 110 S.E. 176) is construed to hold to the contrary. The assignment is as follows: Because R. E. Lee, witness for the State, was permitted to testify, over timely objection of the defense that there was bad feeling toward him on the part of the defendant, and the defendant objected to this testimony on the grounds that it was based solely on opinion and was irrelevant and highly prejudicial. The trial judge approved this recital of fact as true and correct. The substance of the evidence complained of is set forth and the court certified that the objection to it was timely. Code, § 38-1712, relied upon in the brief of counsel for the State relates to the state of the witness's feelings toward the parties, and not the state of the feelings of a party toward the witness. The relative standing of the witness and the defendant was such that the testimony complained of would necessarily have been prejudicial to the defendant, and its admission constitutes harmful error.
4. Special ground 4 assigns error on the failure of the State to prove that the defendant set fire and caused the house in question to be burned with the intent to defraud, the indictment charging him with having done so wilfully, feloniously, maliciously, and with the intent to defraud. It is contended that, these elements in the indictment, having been alleged conjunctively, it is incumbent upon the State to prove each and every one of them. The defendant was indicted under § 26-2208 of the Code, which provides as follows: "Any person who wilfully or maliciously, or with intent to defraud, sets fire to, or burns, or causes to be burned, or who aids, counsels or procures the burning of any dwelling house, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, the property of himself or of another, shall be guilty of arson and upon conviction thereof be sentenced to the penitentiary for not less than two nor more than 20 years." The elements of wilfulness, malice, and intent to defraud, or some one of these elements is essential to make out the crime. Section 27-701 of the Code provides as follows: "Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may easily be understood by the jury." Notwithstanding this provision of the Code, it is the rule in this State that an indictment or accusation charging a crime in the alternative, when the offense may be committed in more than one way, is subject to special demurrer. Haley v. State, 124 Ga. 216 ( 52 S.E. 159); Statham v. State, 50 Ga. App. 165 (2) 167, 168 (supra). While the alternatives in the statute in the instant case relate to the motive rather than the method, we think that the same rule applies. Accordingly, it is proper for the indictment in such cases to allege conjunctively, and the State makes a prima facie case upon its establishment by proof of any one or more of the methods of committing the one offense charged. It was not incumbent on the State to prove intent to defraud in this case. This assignment of error is without merit.
However, the judgment of this court is controlled by the ruling in division 3 hereof.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.