Mason v. State , 30 Ga. App. 661 ( 1923 )

Luke, J.

1. Granting (but not deciding) that the excerpt from the eharge of the court complained of in the first special ground of the motion for a new trial was subject to the criticism that it did not correctly state the contention of the defendant, this, under all the facts of the case and in the light of the entire charge, was not such an error as would likely mislead the jury, and will not require the giant of a new trial.

2. There being evidence of a concert of action on the part of the defendant and one Nichols to commit the offense charged in the indictment, the ground complaining that the court erred in charging the law as to a principal in the second degree is without merit.

3. This court cannot hold that the trial judge erred in overruling the grounds relating to alleged newly discovered evidence, since the record contains no affidavit of the movant that he did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence. Civil Code (1910), § 6086.

4. The ante-mortem statement of a person indicted for assault with intent to murder, on account of the same transaction for which the defendant was indicted and tried, that he did the cutting in question, is not admissible in evidence. Daniel v. State, 65 Ga. 199 (1); Kelly v. State, 82 Ga. 444 (9 S. E. 171); Delk v. State, 99 Ga. 667 (26 S. E. 752); Lowry v. State, 100 Ga. 574 (28 S. E. 419); Robison v. State, 114 Ga. 445 (40 S. E. 253); Kennedy v. State, 9 Ga. App. 219 (70 S. E. 986); Barrage v. State, 21 Ga. App. 508 (1) (94 S. E. 644). Under this ruling there is no merit in ground 14 of the motion for a new trial.

5. The evidence authorized the verdict, which has the approval of the trial judge, and for no reason assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur. J. 0. Ewing, Dorsey, Brewster, Howell & Reyman, for plaintiff in error. John A. Boylcin, solicitor-general, E. A. Stephens, contra.