Opinion
31556.
DECIDED MAY 28, 1947.
Using profane language; from Clayton Superior Court — Judge Davis. December 27, 1946.
Howard, Camp Tiller, for plaintiff in error.
Roy Leathers, Solicitor-General, contra.
1. "It is now unquestioned that a witness may testify that statements made over a telephone were statements of the accused, where the witness is able to recognize the voice." 1 Wharton Criminal Ev. (11th. Ed.), § 267 (7), p. 330, 332, and § 267 (4), p. 330, 331. In the only special ground of the motion for a new trial the objection is raised that the testimony of the prosecutrix, who testified that she recognized the voice of the accused, was a conclusion and inadmissible. This ground is not meritorious. See, in this connection, People v. Strollo, 191 N.Y. 42 ( 83 N.E. 573); State v. Usher, 136 Iowa 606 ( 111 N.W. 811).
2. As to the general grounds, the question is whether or not the prosecuting witness was able to recognize the voice of the defendant over the telephone. Held: The evidence in the instant case relative to the identification and recognition of the voice of the defendant over the telephone by the prosecutrix is equally as strong, if not stronger, than the evidence of identification and recognition of the voice of the defendant over the telephone in the case of McClung v. State, 62 Ga. App. 892 ( 10 S.E.2d 303). The evidence was sufficient to authorize the jury to find that the prosecuting witness recognized the voice of the defendant over the telephone, and under the evidence as a whole they were authorized to find the defendant guilty as charged.
3. The trial judge did not err in overruling the defendant's motion for new trial, and the evidence authorized the verdict.
Judgment affirmed. Parker and Townsend, JJ., concur.
DECIDED MAY 28, 1947.
STATEMENT OF FACTS BY MacINTYRE, P. J.
The defendant, Arthur Taylor, was indicted for the offense of using profane, vulgar, and obscene language without provocation in the presence of a female in violation of Code, § 26-6303. The jury found the defendant guilty, and the defendant filed a motion for new trial on the general and one special ground which was an elaboration of the general grounds. The trial judge overruled the motion, and the defendant excepted.
From the evidence it appears that the prosecutrix received seven or eight telephone calls at her home from a man who used abusive or obscene language. She did not recognize the voice, and the caller did not reveal his identity. After discussing the matter with the sheriff and the solicitor-general, she agreed to make an appointment to meet the caller at a specified time and place. When the person called the prosecutrix the next time, a meeting was arranged. The sheriff concealed himself in the rear of the prosecutrix's automobile. The defendant drove by the automobile and stopped. He approached the car and asked the prosecutrix about the bus and train schedules. When the defendant noticed the sheriff in the rear of the automobile, he started to walk off. The sheriff got out of the car and asked the defendant several questions about his driver's license and identification. The defendant was then arrested and placed in jail. The sheriff called the prosecutrix and asked her to call the defendant at the jail on the telephone. This was accomplished, and the prosecutrix testified that the "voice I talked to some twenty minutes after he was arrested was the same voice that called me that morning, that I made this date with, and I am positive it was," and "that is the same voice that called me some seven times and used this language you read out of the indictment."
Evidence was introduced by the defendant to show that he could not have made the telephone call at the time the appointment was made with the prosecutrix, that his general reputation was good, and that he had valid reasons for being at the place where he was arrested. The jury resolved the conflicting evidence adversely to the defendant.