A fortiori, after the repeal of the act of 1938 by the act of 1939, a denial of the right to make such a recommendation was held erroneous. Harris v. State, 191 Ga. 555, 557 (10) ( 13 S.E.2d 459). See also, as to other cases where the act of 1938 was not applicable, Winston v. State, 186 Ga. 573 (1-3), 577 ( 198 S.E. 667, 118 A.L.R. 719); Hurt v. State, 187 Ga. 73 ( 199 S.E. 801); Burns v. State, 191 Ga. 60 (4), 65 ( 11 S.E.2d 350).
And where the inapplicable instruction involves one of the vital issues appellate courts take a closer, more critical look, and a less tolerant stance. Harris v. State, 191 Ga. 555 (11) ( 13 S.E.2d 459); Wiggins v. State, 14 Ga. App. 314 (2, 4) ( 80 S.E. 724). The inapplicable instruction in the instant case authorized the jury to reach a finding of guilty by a theory not supported by the evidence, and we can not say — as a matter of law, that the charge was neither confusing nor misleading.
" We do not think that the excluded evidence was hearsay; but, if so, it was nevertheless admissible under Code § 38-302, which provides that, when "information, conversations . . . and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence, not as hearsay, but as original evidence." For cases so holding, see Moss v. Moss, 147 Ga. 311 (3) ( 93 S.E. 875); Harris v. State, 191 Ga. 555 (6) ( 13 S.E.2d 459); and Bryant v. State, 191 Ga. 686 (14) ( 13 S.E.2d 820). In the instant case, the excluded evidence was clearly admissible for the purpose of explaining the defendant's conduct on the night of the homicide when notified that his daughter was being assaulted by her husband, and for the purpose of ascertaining his motive in going from his home to the place where she was being thus abused by the deceased.
This testimony was clearly relevant to an issue at trial, viz, the modus operandi of those accused of the crime. See, e.g., Harris v. State, 191 Ga. 555 (6) ( 13 S.E.2d 459) (1941); Brown v. Matthews, 79 Ga. 1 (4) ( 4 S.E. 13) (1887); Athena Prods. v. Geographics, 168 Ga. App. 828 (2) ( 310 S.E.2d 547) (1983). See also Waters v. State, 168 Ga. App. 918 (2) ( 310 S.E.2d 774) (1983).
The court allowed it in evidence solely as an exception to the hearsay rule to explain her conduct. Stamps v. Newton County, 8 Ga. App. 229 (9) ( 68 S.E. 947); Harris v. State, 191 Ga. 555 (6) ( 13 S.E.2d 459); Joiner v. Joiner, 225 Ga. 699 (3) ( 171 S.E.2d 297). The complaint that this testimony was hearsay is not meritorious. 2.
The preceding sentence complained of is: "If the witness himself could have been or was indicted for the offense either as principal or accessory, then he would be an accomplice." Of a very similar charge Justice Jenkins, in Harris v. State, 191 Ga. 555 (11) ( 13 S.E.2d 459) had this to say: "The court charged as follows: `If the witness himself could have been indicted or has been indicted for the offense, either as principal or as an accessory, then and in that event he would be an accomplice.' This charge had reference to the testimony of the alleged principal who was jointly indicted and had been previously convicted, and who testified for the State in this case.
ation, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence, not as hearsay, but as original evidence." Our attention is called also to the following cases: Davis v. Farmers Traders Bank, 36 Ga. App. 415 ( 136 S.E. 816); Central of Ga. Ry. Co. v. Dumas, 44 Ga. App. 152 (2) ( 160 S.E. 814); Moss v. Moss, 147 Ga. 311 (3) ( 93 S.E. 875); Southern Ry. Co. v. Tudor, 46 Ga. App. 563 (5), 574 ( 168 S.E. 98); Bryant v. State, 191 Ga. 686 (14) ( 13 S.E.2d 820); Fitzgerald v. State, 10 Ga. App. 70 (4) ( 72 S.E. 541); Peek v. Irwin, 164 Ga. 450 (5), 455 ( 139 S.E. 27); Ponder v. State, 87 Ga. 262 ( 13 S.E. 464); Purvis v. Atlanta Northern Ry. Co., 145 Ga. 517 ( 89 S.E. 571); Third National Bank v. Baker, 19 Ga. App. 208, 212 (1) ( 91 S.E. 346); McClung v. State, 206 Ga. 421 (1), 423 ( 57 S.E.2d 559); Phillips v. State, 206 Ga. 418 (3) ( 57 S.E.2d 555); Todd v. State, 200 Ga. 582 (1), 588 ( 37 S.E.2d 779); Harris v. State, 191 Ga. 555 (6) ( 13 S.E.2d 459). The plaintiff contends that the question of damages is the only real issue in this case and the only defense offered to the amount claimed by the plaintiff concerned her motives and whether or not her suffering was physical or merely temperamental, and in particular whether or not it was caused by the collision or whether or not it existed prior thereto.
This testimony merely explains the conduct of the witness and explains why he, as an officer of the law, took the action he took, upon the complaint of the defendant's neighbors. See, in this connection, Brown v. Matthews, 79 Ga. 1 (4) ( 4 S.E. 13); Grant v. State, 75 Ga. App. 784 (3), 788 ( 44 S.E.2d 513); Harris v. State, 191 Ga. 555 (6) ( 13 S.E.2d 459). This assignment of error is without merit. For the reason stated in division 1 of this opinion, the trial court erred in overruling the motion for a new trial.
This assignment of error is without merit. This testimony explains the conduct of a witness only. Harris v. State, 191 Ga. 555 (6) ( 13 S.E.2d 459). The court did not err in overruling the certiorari for any of the reasons assigned.
Wade v. Eason, 27 Ga. App. 388 (3) ( 108 S.E. 481). And "mere general conclusions without specific facts on which they are based will constitute no cause of action." Butler v. Dublin, 191 Ga. 555 (4) ( 13 S.E.2d 362), and cit. The petition as finally amended contains no "well-pleaded" facts to show that the defendant's foreclosure and subsequent proceedings and transactions were without cause or in breach of the agreements between the petitioner and the defendant, and we hold that the petition was subject to the demurrers interposed, and that the court did not err in sustaining the demurrers and dismissing the action. Judgment affirmed. Sutton, P. J., and Felton, J., concur.