Davis v. State , 33 Ga. 98 ( 1861 )

By the Court —

Jenkins, J., delivering the opinion.

After careful examination of the bill of indictment, we think its allegations and specifications are sufficient in law to authorize a conviction of, and judgment against, the accused, for larceny from the house, and will not disturb the judgment of the Court below, overruling the motion in arrest of judgment. Neither the argument of counsel, nor even our own scrutiny of the evidence, have satisfied us that “ the verdict is contrary to evidence, or greatly against the weight of the evidence.” Therefore, without entering upon an argument ' of the facts, we sustain the judgment of the Court below, overruling the motion for a liew trial on the first ground. 1st. Whilst we hold that it is the duty of the Court to restrict the Solicitor General in his concluding argument upon the facts, to such as are in evidence, we see in the departure from this course, which the Court below is alleged to have permitted in this case, nothing prejudicial to the accused; and inasmuch as it does not appear that the Court was called upon to interpose, the remarks objected to certainly .furnish no sufficient ground for a new trial.

2nd. In so far as the refusal of the Court to continue the case constitutes a ground of a motion for a new trial, it is doubly untenable. . It appears that the Court postponed the cause for a time, that the accused might procure the attendance of his witnesses, and placed an officer at his command. They were sent for, and no further complaint was made on that score; the absent witness, it would seem, attended in obedience to a summons.

3rd. There was no evidence of great excitement in the community against the accused, and it would have been strange if there had been such a feeling produced by a charge of this nature. The judgment of the Court below is affirmed in all of the points.

Let the judgment be affirmed.