Rosborough v. The State

Supreme Court of Georgia1952-10-14No. No. 17982

209 Ga. 362

Summary · law.co

Holding. The judgment is reversed because the trial court erred in admitting evidence of a separate prior assault conviction, inadmissible hearsay about a prior robbery charge, and inadmissible hearsay statements from a cab driver, none of which met exceptions to the general rule excluding such evidence.

Rosborough was tried for robbery by force. The trial court admitted several categories of evidence that the defendant objected to: testimony about a prior assault and battery conviction, hearsay testimony from an arresting officer about a previous robbery charge, and hearsay testimony from an arresting officer relaying what a cab driver had said about the defendant's activities after the crime. The defendant argued these were improper under the rules of evidence.

The court found multiple errors. Evidence of a wholly separate crime—even if the same type of offense—is inadmissible because it has no logical connection to the crime being tried. The prior robbery charge testimony was hearsay from someone without personal knowledge of those events and did not fit any exception to the hearsay rule. Similarly, the cab driver's statements repeated by the officer constituted inadmissible hearsay and could not be treated as an admission by the defendant's silence, since the circumstances did not require him to respond. The trial court erred in admitting all three categories of evidence.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Admissibility of evidence of prior unrelated crimes
Admissibility of hearsay testimony from arresting officer
Whether hearsay can be admitted as admission by acquiescence or silence
Application of exceptions to the hearsay rule

Procedural posture

The defendant appealed from a conviction for robbery by force, challenging the trial court's admission of various categories of evidence through a motion for new trial.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Duckworth, Chief Justice.

1. On the trial of one charged with a particular crime, evidence which tends to show that the accused has committed another crime wholly independent from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible. Williams v. State, 152 Ga. 498 (110 S. E. 286); Cawthon v. State, 119 Ga. 395 (46 S. E. 897); Frank v. State, 141 Ga. 243 (80 S. E. 1016); Bacon v. State, 209 Ga. 261 (71 S. E. 2d, 615). The evidence here of an accusation of assault and battery upon which the accused had been previously convicted has no logical connection whatsoever with the case on trial, which charged the accused with robbery by force, and the court erred in overruling the second special ground of the motion for new trial, complaining of the admission of such evidence.

2. The testimony of the arresting officer as to a previous charge of robbery by force against the accused was clearly hearsay, as he was without personal knowledge of the facts about which he testified, not having been present when the crime occurred or having heard the sworn testimony of the witnesses thereto in court. Accordingly, the court erred in overruling the third special ground of the amended motion for new trial, complaining thereof. Code, § 38-301. Nor was the evidence of a previous conviction of robbery by force connected up in such a way as to show scheme, motive, plan, or criminal bent of mind here, sufficient to come within the exception to the general rule in headnole 1 above. See Frank v. State, 141 Ga. 243 (supra); Williams v. State, 152 Ga. 498 (supra); Wilson v. State, 173 Ga. 275 (100 S. E. 319); Dorsey v. State, 204 Ga. 345 (49 S. E. 2d, 886).

No. 17982.

Argued September 9, 1952

Decided October 14, 1952.

Joseph B. Cramer, for plaintiff in error.

Andrexv J. Ryan Jr., Solicitor-General, Sylvan A. Garjunkel, Thomas M. Johnson Jr., Eugene Cook, Attorney-General, and J. R. Parham, Assistant Attorney-General, contra.

3. The testimony of the arresting officer as to statements made to him by a cab driver, in the presence of the accused, regarding the activities of the accused while a passenger during the night after the crime was committed, was hearsay also, not being original evidence, under Code § 38-302, nor an exception to the hearsay rule. See Code, Chapter 38-3. Compare Moss v. Moss, 147 Ga. 311 (3) (93 S. E. 875); Garrett v. State, 157 Ga. 817 (122 S. E. 211); Phillips v. State, 206 Ga. 418 (57 S. E. 2d, 555). Nor was it admissible as an admission by acquiescence or silence, as argued by counsel for the State, since the circumstances here required neither an answer nor a denial by the accused. Graham v. State, 118 Ga. 807 (45 S. E. 616); Johnson v. State, 151 Ga. 21, 24 (105 S. E. 603). Therefore, the court erred in overruling the first special ground of the motion for new trial, complaining of the testimony as hearsay.

4. The fourth special ground and the general grounds of the motion, not having been argued in this court or insisted on in the briefs of the plaintiff in error, will be treated as abandoned. Code, § 6-1308; Terry v. Fickett, 199 Ga. 30 (33 S. E. 2d, 163); Smith v. Tippins, 207 Ga. 262 (61 S. E. 2d, 138).

5. Since there must be a new trial, and since the grounds of complaint in the exceptions pendente lite may never occur again, no ruling is here made thereon.

Judgment reversed.

All the Justices concur.