Smith v. State , 24 Ga. App. 654 ( 1920 )

Broyles, C. J.

1. Conceding, but not deciding, that the court erred in admitting in evidence the testimony as complained of in the first special ground of the motion for a new trial, a reversal of the judgment below is not required, since other testimony to the same effect was introduced without objection. See Matthews v. Richards, 19 Ga. App. 489 (2) (91 S. E. 914), and citations.

2. The special grounds of the motion for a new trial which complain, in effect, that the judge in his charge failed to state fully and fairly the contentions of the defendant are without substantial merit.

(a) While the contentions of the State were given more at length than were the contentions of the defendant, the statement of the defendant’s contentions was apparently full and fair, and, in the absence of a timely and appropriate request for fuller instructions as to his contentions, no error appears in this respect. It is well settled that the mere fact that contentions of one side are stated more at length than those of the other does not show that undue stress was laid upon or undue prominence given to the contentions so stated. Millen &c. Railroad Co. v. Allen, 130 Ga. 656 (1) (61 S. E. 543), and. cit.

Decided January 6, 1920.

Conviction of assault and battery; from McDuffie superior court —Judge Henry C. Hammond. September 21, 1919.

Application for certiorari was denied by the Supreme Court.

John T. West, J. B. Burnside, for plaintiff in error. A. L. Franklin, solicitor-general, John M. Graham, contra.

(6) The fact that the court, in charging that the State contended that the defendant was intoxicated, added, in immediate connection therewith, “I charge you, gentlemen, that intoxication is no excuse for crime,” affords no ground for complaint.

(c) The judge’s charge as to the contentions of the State and the defendant was not erroneous for any other reason assigned.

3. The alleged newly discovered evidence was largely cumulative and impeaching in its character, and it does not appear that the judge abused his discretion in overruling those grounds of the motion for a new trial which were based thereon.

4. The verdict was authorized by the evidence, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.