Bailey v. State , 167 Ga. 318 ( 1928 )

Per Curiam.

The court charged the jury as follows: “It is necessary, in the determination of your verdict in this case, for you to determine the character of the instrument used which resulted in the death of the deceased. If you determine that the instrument used, in the manner in which it was used upon that occasion, was a weapon likely to produce death, and that from the use of the weapon in the manner in which it was used the death of the deceased ensued, the law, from the use of the weapon in such manner, would imply an intent to kill.” This charge was error, because it withdrew from the consideration of the jury the contention made in the defendant’s statement that the homicide was the result of accident.

In four grounds of the motion for new trial the movant complains of the admission of testimony over “timely objection.” These grounds also State the movant’s reasons for his contention that the court’s rulings were error. These grounds are incomplete, because they fail to state what ground of objection was urged at the time the testimony was offered.

Two grounds of the motion assign error upon the court’s charge on the defendant’s statement, and on failure to charge, in connection therewith, “that the jury might believe the defendant’s statement in preference to the sworn testimony in the case if they saw fit, or that they might disbelieve it if they saw fit, or that they might believe it in whole or in part, — that they might believe part of it and reject or disbelieve the remainder.” The charge of the court on the subject of the prisoner’s statement was in compliance with the Penal Code (1910), § 1036. If the movant desired the elaboration stated above, the same should have been duly requested in writing.

No ruling is made upon the sufficiency of the evidence, because the ease is remanded for a new trial.

Judgment reversed.

All the Justices .concur, except