Quinn v. State , 22 Ga. App. 632 ( 1918 )

Bloodworth, J.

1. In the motion for new trial it is complained that "the court erred in allowing the evidence of the witness J. E. Yarn, with reference to getting whisky from some young man, to remain in the record after defendant’s counsel moved to exclude the same.” What this evidence is, “with reference to getting whisky from some young man,” is not shown in this ground of the motion, and our Supreme Court and this court have repeatedly held that a ground of a motion for new trial assigning error upon the admission of evidence will not be considered, unless the evidence is sufficiently set forth for the question of its admissibility to be determined without reference to other parts of the record. Pound v. Smith, 146 Ga. 431 (5), 436 (91 S. E. 405); Willbanks v. Byrd-Matthews Lumber Co., 146 Ga. 750 (3) 751 (92 S. E. 281); Bank of Norwood v. Chapman, 19 Ga. App. 709 (3) (92 S. E. 225); Copeland v. Ruff, 20 Ga. App. 217 (2), 218 (92 S. E. 955).

2. Where counsel for the accused moves to exclude certain testimony upon the ground that it does not connect the accused with the alleged crime, and the trial judge says, “I will exclude it unless . . [the solicitcogeneral] shows some cónnection with the defendant,” but no motion to rule it out is thereafter made, counsel for the accused will be held to have waived his objection, and it is not error for the judge to fail to exclude the testimony later on his own motion. Lindsay v. State, 138 Ga. 818 (7), 823 (76 S. E. 369); Cawthon v. State, 119 Ga. 395 (7), 396 (46 S. E. 897); Stone v. State, 118 Ga. 705 (9), 716 (45 S. E. 630, 98 Am. St. R. 145); Thurman v. State, 14 Ga. App. 543 (2) (81 S. E. 796).

3. The court did not err in permitting a witness to testify that he “had seen others go to the place of business of defendant and come away with whisky,” on the ground that this was a conclusion of the witness. This evidence was not a conclusion, but the statement of a fact which was clearly admissible as a circumstance corroborative of other evidence in the case. Reddick v. State, 15 Ga. App. 437 (2), 442, 443 (83 S. E. 675); Gary v. State, 7 Ga. App. 501 (3), 505 (67 S. E. 207); Bonner v. State, 2 Ga. App. 711 (58 S. E. 1123); Cole v. State, 120 Ga. 485 (48 S. E. 156).

4. There is no merit in the ground of the motion for a new trial that the court did .not charge the jury “the laws with.refer-., ence to the first ground in the accusation.” An examination of the charge of the court will show that the judge did charge, the. jury in reference to this “ground,” and if a fuller charge in reference thereto was desired, a proper and timely written request should have been made as provided by the statute.

5. Error is assigned on the charge of the court with reference to"the second count of the accusation. The jury having found the defendant guilty on the first count* only,- this was an acquittal of the crime charged in the second count, and even if the court committed error in his charge in reference to this count, it’could not have harmed the defendant. Hathcock v. State, 88 Ga. 91 (2), 97 (13 S. E. 959.).

6. Where an accusation contained two counts, and the judge instructed the jury, if “they were satisfied of the guilt of the defendant beyond a reasonable doubt, to return a verdict of ‘W'e, the jury, find the defendant guilty,’ otherwise ‘¥e, the jury, find the defendant not guilty.’ ” and the jury, notwithstanding this charge, found the defendant guilty on the first count only, the error in the charge could not have been harmful to the defendant. This ruling covers grounds 6 and 10 of the amendment to the motion for a new trial. '

7. There is no merit in ground 7. “While it is the duty of a judge in the trial of a criminal case to state the contentions of both the State and the defendant, still, in the absence of a request for more definite instructions, a statement by the court that the grand jury has returned an indictment against the defendant, charging him with the offense of murder, and that to this the defendant has filed a plea of not guilty, which makes the issue for them to-try, sufficiently presents the issue.” Faison v. State, 13 Ga. App 180 (79 S. E. 39). And see Wilensky v. State, 15 Ga. App. 360 (83 S. E. 276).

(a) “The fact that the presiding judge stated in his charge, Tn two separate and distinct places,’ the language or substance of the indictment did not unduly emphasize the contentions of the State to the prejudice of the prisoner.” Mulligan v. State, 18 Ga. App. 464 (4), 468 (89 S. E. 541).

(b) Besides, “The exception that the State’s contentions were •unduly stressed is not so presented as to submit anything for the consideration of this court, but would require a careful scrutiny and analysis of the entire charge of the court, and the language to which the exception is taken is not embodied in the motion.for a new trial as required by the decisions of the Supreme Court and of this court.” Roberts v. State, 16 Ga. App. 315 (4) (85 S. E. 285).

8. Even if evidence was of such a character as to authorize the court to charge on. alibi, the failure so to charge in the instant case was not harmful’to the defendant, as the charge could have been applicable only to the evidence on- the second count, and the defendant was acquitted on this count.

9. A ground of a motion for new trial which alleges that a new trial should have been granted’“because the verdict returned in said case was not in accordance with the instructions cf the court” amounts merely to a complaint that the verdict was contrary to law, and the general grounds of the motion cover this exception. Brannan v. McWilliams, 146 Ga. 528 (4) (91 S. E. 772); Seaboard Air-Line Railway v. Vaughn, 19 Ga. App. 397 (2a), 398 (91 S. E. 516); Georgia Northern Ry. Co. v. Sharp, 19 Ga. App. 503, 504 (91 S. E. 1045).

10. Granting that the trial judge erred in his rulings in reference to other evidence, there was direct and positive evidence, by an unimpeached witness, that the witness bought whisky more than once from the defendant, and this is enough to support a conviction.

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.