Hudson v. State , 1933 Ga. App. LEXIS 176 ( 1933 )

Bboyles, C. J.

1. It is within the discretion of the court, during the trial of a criminal case, to grant or to refuse permission to either the State or the defendant to make an experiment in the presence of the jury' for the purpose of using the result as evidence. However, an experiment should be cautiously allowed, and only when the court is satisfied “from the nature of the experiment that the jury will be enlightened thereby;” apd the experiment or test, whenever made, “should be based as nearly as possible upon conditions and circumstances like those existing at the time of the offense.” 16 Corpus Juris, 810, 2056; Taylor v. State, 135 Ga. 622 (7), 625. Under the foregoing ruling and the facts of the instant ca.se, the ground of the motion for a new trial complaining of the court’s refusal of the defendant’s request to allow a test to'be made in the presence of tliei jury of the ability of the principal witness for the State to recognize and identify persons at a certain distance from him (the distance, however, being considerably greater than the space which intervened between the witness and the defendant at the time of the offense when the witness, according to his evidence, recognized the defendant as the perpetrator of the crime) shows no cause for a reversal of the judgment.

2. The general grounds of the motion for a new trial, not having been argued or insisted upon in the brief of counsel for the plaintiff in error, are treated as abandoned.

Judgment affirmed.

MacIntyre and Guerry, JJ., concur.