Jabaley v. State , 26 Ga. App. 76 ( 1920 )

Bloodworth, J.

1. The only ground of the amefidment to the motion for a new trial alleges error in the refusal of the judge to declare a mistrial “because of certain statements and improper remarks made to the jury ” by one of the attorneys for the prosecution. For two reasons this court is not called upon to consider this ground of the motion.

(а) The statement of the trial judge in connection with this ground amounts to a disapproval thereof. “ If the judge approve the ground of the amendment without more, this is a sufficient approval, but an express approval with certain added qualifications is not an unqualified approval of the ground as true. ” New v. State, 26 Ga. App. 5(2) (105 S. E. 50), and cases cited. And see Adamson v. Bradley, 147 Ga. 328 (93 S. E. 894).

(б) “The ground of the motion for a new trial assigning error upon a remark of the solicitor-general, alleged to be improper, cannot be considered, for the reason that it fails to aver that the comment or conclusion of the solicitor-general was not referable to any evidence adduced upon the trial. ” Blount v. State, 18 Ga. App. 204 (2) (89 S. E. 78). However, the argument of counsel “introduced no fact, but' was merely a forcible and possibly an extravagant method adopted by counsel of impressing upon the jury the enormity of the offense and the solemnity of their duty in relation thereto. ” Patterson v. State, 124 Ga. 409 (52 S. E. 535). “What the law forbids is the introduction into a case, by way of argument, of facts not in the record and calculated to prejudice the accused. ” Taylor v. State, 121 Ga. 354 (49 S. E. 360). “In a prosecution for a homicide, a statement by the prosecuting attorney in his argument, expressive of his opinion of the defendant’s guilt, and his characterization of the crime as being diabolical, should be construed to mean that the testimony led him to this conclusion. In the absence of anything to the contrary, the solicitor’s remarks will be regarded as a deduction from the evidence. ” Floyd v. State, 143 Ga. 289 (84 S. E. 972). See also Civil Code (1910), § 4957; McLeod v. State, 22 Ga. App. 241 (5) (95 S. E. 944), and cases cited.

2. The judge approved' the verdict, which had some evidence to support it, and this court cannot interfere.

Judgment affirmed.

Broyles, Q. J., and Lulce, J., concur.