Opinion
36813.
DECIDED SEPTEMBER 13, 1957.
Robbery. Before Judge McGehee. Spalding Superior Court. May 30, 1957.
R. L. Addleton, for plaintiffs in error.
Andrew J. Whalen, Jr., Solicitor-General, contra.
1. There is sufficient evidence to support the verdict.
2. When counsel for a defendant asks a question which might elicit an answer against the interests of his client, he can not thereafter complain as a basis for reversal of the harmful effect of such answer.
3. In order for a ground of a motion for new trial to be considered by this court, it is mandatory that the trial judge distinctly approve or verify it.
DECIDED SEPTEMBER 13, 1957.
Duiron Gaddy and Hershel Gaddy were convicted of robbery by force and intimidation and were sentenced to serve from two to five years in the penitentiary. Counsel for the defendants filed a motion for new trial on the statutory grounds and thereafter added 2 special grounds by amendment. The trial court disallowed special ground 2. It is on the judgment denying the motion for new trial that the case is here for review.
The evidence shows substantially as follows: Francis W. Kidd, witness for the State, testified that on the night of January 25, 1957, in Spalding County the three Gaddy brothers attacked him by cutting his throat and taking his pocket knife, cigarette lighter, keys and bill fold containing approximately $5; that he was not acquainted with the Gaddy brothers but knew them by sight; that he could positively identify the one who cut him as Hershel Gaddy; that witness had been drinking heavily but knew what was going on. The witness identified his knife which he claimed was taken from him, and further testified that one of the three defendants took no part in robbing him or cutting him, and tried to discourage the other two, and further that the two who were actively engaged in attacking him were Hershel Gaddy and Duiron Gaddy; and that he did not pawn his knife to them.
Laurie Pritchett, witness for the State, testified substantially that he arrested Hershel, Duiron and Horace Gaddy and that the victim positively identified the three as his attackers; that the victim positively identified a knife which was removed from Horace Gaddy's possession as being the knife which was stolen from him.
On cross-examination the witness testified that he picked the three boys up because Mr. Kidd told him they had just got out of prison and they were brothers and he checked his records and found the only three brothers they knew were the Gaddy boys and they were in Griffin and "one had got out on Saturday."
Two witnesses for the defendants, John Pace (the operator of the Depot Grill) and Louise Bishop, waitress, testified substantially that the four persons involved were in the Depot Grill drinking beer the night of the alleged attack; that they all left together; that Mr. Kidd returned later and had been cut but did not know who did it, and they sent him to the hospital in a cab.
The Gaddy brothers, in unsworn statements, testified substantially that they had been drinking with the victim but that when they left the Depot Grill they (the brothers) went to the White House Cafe and did not see Mr. Kidd any more until they were arrested the next morning; that Kidd had pawned his knife to them for a dollar to buy beer; that their knife, which the State claimed was the weapon used in the attack, actually was bloodied from the cut finger of one of the brothers.
1. The evidence is amply sufficient to sustain the judgment.
2. Special ground 1 assigns error because it is alleged that the court erred in admitting evidence, over objections, from a police officer of the city of Griffin. Counsel for the defendants asked the police officer: "What led you to pick up these boys?" The police officer answered: "Mr. Kidd told me they had just got out of prison and they were brothers. He said they had just got out of prison. I checked my records, the only three brothers we knew of were the Gaddy boys. We checked, and they were in Griffin and one had got out on Saturday." Counsel for the defendants moved for a mistrial on the ground that the character of the defendants was put into evidence by the answer of the officer, without having been solicited by counsel. The motion was denied by the trial judge. Defendants' counsel asked the officer the cause of their arrest. The officer could give no answer other than the one given, under the truth of the situation as it existed. Counsel asked a question which left the field wide open for a reply such as was given and counsel can not complain of the outcome.
Counsel for the defendants cite Felton v. State, 93 Ga. App. 48 ( 90 S.E.2d 607) as authority for reversal. We have read the facts of that case and find that they are such as to take that case out of the scope of the facts of the case at bar and not binding authority for reversal. In Scott v. State, 57 Ga. App. 187 (1) ( 194 S.E. 844) this court said: "The ground of the motion for new trial complaining of the admission of certain testimony of a witness for the State is without merit, since the ground discloses that the testimony was elicited from the witness (presumably, on cross-examination) by counsel for the movant. Where counsel on the cross-examination of a witness takes a chance by propounding a dangerous question, he will not be heard to object to the answer, no matter how prejudicial it may be, if the answer is a direct and pertinent response to the question." See also Brown v. Wilson, 55 Ga. App. 262 (2) ( 189 S.E. 860); Foster v. State, 72 Ga. App. 237 (2) ( 33 S.E.2d 598); and Anderson v. Brown, 72 Ga. 713, 714 (8). This special ground is not meritorious.
3. Special ground 2 is disapproved expressly by the trial court and therefore is not before this court for consideration. See Williford v. State, 56 Ga. App. 40 (9) ( 192 S.E. 93) wherein this court said: "The grounds of a motion for new trial must be distinctly approved by the trial judge. Grounds not approved or verified by him will not be considered by this court." There are many other decisions to the same effect.
The court did not err in denying the motion for new trial for any reason assigned.
Judgment affirmed. Carlisle, J., concurs. Townsend, J., concurs in the judgment.