Hodges v. State

Carlisle, Judge,

dissenting. I must dissent from the decision of my colleagues rendered in this case. In the first place, the *300contention made by the plaintiff in error in her motion for a revision of the decision does not seem to have been properly raised in the trial court. It is true that the petition for certiorari shows that counsel for the defendant objected to the evidence of each witness with respect to the transactions covered by counts 1, 2 and 3 in substantially the same language each time as follows: “Mr. Venable: I object to all this testimony in regard to events in June and July, 1952, as beyond the statute of limitations and barred by it as highly prejudicial, irrelevant, immaterial and placing the defendant’s character in issue without her having first done so.” As I have said, counsel for the defendant objected to all of this evidence, but some of the objections were not as full as that which I have quoted. Conceding, however, for the sake of argument, that counsel for the defendant properly renewed his objection to each separate instance of the introduction of evidence with respect -to the transactions barred by the statute of limitations, I do- not think that these objections were sufficient to apprize the trial court of the exact nature of the objection now made for the first time in this court. Nothing should be read into an objection to evidence that is not expressly stated by counsel. The trial court cannot read counsel’s mind and can only pass upon the specific objection made. Applying the well established principle that this court can only pass upon questions raised in the trial court, this court, of course, cannot enlarge the wording of the objection made in the trial court and cannot by implication extend the wording so as to permit it to raise a question which it plainly did not raise. None of the objections interposed by counsel for the defendant to the evidence respecting the transactions barred by the statute of limitations expressly pointed out to the trial court that counsel was objecting to evidence as to those transactions because such evidence would prejudice the minds of the jury in their consideration of the good counts of the accusation, and that such evidence placed the defendant’s character in issue as to the charges against her with respect to those counts. Many of the objections interposed by counsel were no more than that the evidence of crimes committed beyond the statute of limitations was “irrelevant, immaterial and prejudicial,” or “highly prej*301udicial, irrelevant, immaterial and inadmissible and barred by the statute.” Certainly as to these objections they were not sufficient to raise the question now sought to be raised as to the particular evidence to which they related.

The verdict and judgment in this case were entered on each separate count in accordance with the procedure outlined in Tooke v. State, 4 Ga. App. 495 (3e) (61 S. E. 917). I think that the rulings in Roberts v. State, 14 Ga. 8 (5); Berrien v. State, 156 Ga. 380 (7) (119 S. E. 300); and, Howard v. State, 211 Ga. 186 (2) (84 S. E. 2d 455) are determinative of the merits of the issue now raised by the plaintiff in error (assuming that they were properly presented and raised in the lower court) and require a judgment adverse to those contentions. Under the rule now established by this court, a solicitor will never know whether he can safely go to trial and obtain and have sustained a conviction on any count of a multiple-count indictment or accusation, since, under this rule, he runs the risk of having the entire case thrown out if any one of the multiple counts should subsequently be held to have been defective.

I am authorized to say that Gardner, P. J., concurs with me in this dissent.