1. It was no abuse of the trial judge's discretion to deny a continuance based on the absence of a material witness where the statutory requirements were not met.
2. It was error to allow testimony concerning the indictment of one witness and the conviction of another witness over the timely objection that the records would be the highest and best evidence.
3. Where there was evidence to prove the case as laid, the grant of a nonsuit was error.
This was an action in Carroll Superior Court brought by the mother, Rachel Carroll, against the father, Harold Crawford, to obtain the custody of their minor child, Rebecca Elizabeth Crawford. Custody of the child has been awarded to the father by a divorce decree granted the mother in Cleburne County, Alabama.
The petition, based on change of condition since the entry of the divorce decree, alleged: that the father had remarried and was living within the jurisdiction of the court; that his home was not a suitable and satisfactory place for the child to be reared in; that she has been beaten and whipped unmercifully by her father for no reason at all; that the health of the child is in peril and impaired; that she is nervous and tense and that if she is relieved of the present situation she will make a marked improvement; that her father drinks and becomes infuriated at the suggestion that the child has seen its mother; that "he takes it out on the child by whipping her unmercifully" and is cooperated with in this by his present wife.
It was further alleged: that the conditions are highly unsatisfactory for a child to have to live under; that the cruel acts of the defendant are for the purpose of disassociating the child from her mother; that it is for the best interest of the child that custody be changed; that the mother has since remarried and that her present husband works and makes on the average of $100 per week; that he is willing and able and desires to have the custody of the child given to his wife in order that they might provide a proper home for her.
The defendant father answered, denying the material allegations of the petition.
After two prior continuances, on the call of the case, the plaintiff moved for a continuance on the grounds that there were two absent witnesses (husband and wife), who had been subpoenaed, and would testify as to the defendant's shooting at his second wife. One of the witnesses came into court, but the other (the wife) was absent because of illness in the family. The witness who appeared testified that "he didn't know anything about the defendant shooting his second wife." The motion was denied.
The plaintiff testified that she was married, her husband was making $100 per week; that she had a comfortable home; that she had not been allowed to see her child except at school. She stated that there had been a change of condition since the divorce decree in that: the defendant was drinking; the child was not permitted to accept any presents from the mother because the father would whip and beat the child whenever she would try to communicate with her; the child had sent a watch back to the mother because she was afraid her father would whip her. The mother further testified that she had seen several scars and bruises on the child's body, where the child had been whipped; and that the home of the defendant was not a proper place for a child to be raised under those conditions.
On cross-examination the mother testified, over objection by her counsel, that her second husband was convicted and sent to prison for abandonment; that several years ago she had a child by a man to whom she was not married. She denied that she had been indicted for abandonment.
The plaintiff's husband testified that he was making $100 per week; that he was willing to have the child in his home and able to support her; and, over objection by the plaintiff's counsel, that he had been out of the penitentiary about eight months.
The principal of the school which the child attended testified that the mother had sent the child a watch "but she couldn't keep it because her father would whip her for receiving gifts from her mother"; that he discouraged the mother from writing the child at school because he didn't want this little girl further agitated or whipped.
After the evidence was offered and introduced the plaintiff rested. Whereupon, counsel for the defendant moved to dismiss the case. The trial judge denied the plaintiff's prayers for custody.
The plaintiff excepted to the denial of her motion for continuance, to the allowance of certain testimony on cross-examination, and to the order of the trial judge dismissing the petition at the conclusion of the submission of her evidence.
1. The plaintiff in error urges that the trial court erred in failing to grant a continuance in the absence of a material witness, and points out that the witness was subpoenaed, that she lived in Carroll County, and that the plaintiff expected to have the witness in court to prove her case. In order that the discretion of the trial judge be controlled where a continuance is sought because of the absence of a witness, eight requirements as set out in Code Ann. 81-1410 must be shown. Where as in this case the statutory requirements are not met, it is no abuse of the judge's discretion to deny a continuance. Carr v. Dickson, 58 Ga. 144; Cobb v. State, 110 Ga. 314 (35 SE 178); Tompkins v. American Land Co., 139 Ga. 377 (1) (77 SE 623).
2. Error is assigned on the trial judge's failure to exclude certain evidence brought out on cross-examination regarding a past indictment of the mother for abandonment and as to her second husband serving time for abandonment. The mother was required to answer inquiry as to whether her second husband was convicted and sent to prison for abandonment and as to whether she had been indicted for abandonment; her present husband was permitted to testify that he had been out of the penitentiary for eight months. In both instances counsel for the plaintiff objected on the ground that the records would be the highest and best evidence.
Code 38-203 provides: "The best evidence which exists of the facts sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for." As declared by decisions of this court, permitting a witness to testify as to prior convictions is error, for the judgment of the court in which the witness was convicted is the highest evidence (Howard v. State, 144 Ga. 169 (2), 86 SE 540; and Swain v. State, 151 Ga. 375 (4), 107 SE 40), and the indictment itself is the best evidence as to whether a person has been charged with a crime. Whitley v. State, 188 Ga. 177, 180 (3 SE2d 588). Hence, it was error in the case we now review for the trial judge to allow testimony on cross-examination as to past indictment and conviction of the witnesses over the objection that such was not the highest and best evidence.
3. The plaintiff in error also assigns error on the grant of the motion for nonsuit. Counsel for the defendant in error, in this connection, points out that the plaintiff testified that the same conditions existed at the time she got her divorce in Alabama and now exist; she has never been permitted to see the child, give her gifts or otherwise communicate with her, and that the conditions have existed from the time the divorce was granted in Alabama to the present date.
This testimony was clearly only with reference to the mother's not being allowed to see her child, and has no relevance to cruel treatment of the child, upon which the plaintiff also relies. Therefore, the rule that where the plaintiff's evidence establishes the existence of undisputed facts which show that he is not entitled to a verdict it is proper for the court to grant a nonsuit (Taylor v. Gates, 206 Ga. 880 (1)
, 59 SE2d 365
), would not be applicable here. There is no requirement that the plaintiff be nonsuited because of failure to prove every allegation of his petition. Garrett v. Morris & Co., 104 Ga. 84
, 88 (30 SE 685
); Hixon v. Cubine, 182 Ga. 446 (185 SE 714)
; Sewell v. Anderson, 197 Ga. 623
(6, 7) (30 SE2d 102
Where there is sufficient evidence to authorize the jury to find for the plaintiff, although it is not sufficient to require them to do so, a nonsuit will not be granted. Phillips v. Brigham, Kelly Co., 26 Ga. 617 (1) (71 AD 227). The plaintiff need only produce evidence to prove the case as laid, regardless of whether a cause of action is set forth. Clark v. Bandy, 196 Ga. 546 (27 SE2d 17).
Applying these above-stated principles to the instant case, it appears that the plaintiff produced evidence that the father had been drinking, that he beat the child, and that there were scars and bruises on the child's body, where she had been whipped; that these occurrences had transpired since the original divorce and custody decree in Alabama. Hence, there was some evidence as to change of condition affecting the welfare of the child since the previous decree. Under such circumstances, the grant of the nonsuit was improper.