Cole v. State , 86 Ga. App. 770 ( 1952 )

86 Ga. App. 770 (1952) 72 S.E.2d 537

COLE
v.
THE STATE.

34227.

Court of Appeals of Georgia.

Decided September 17, 1952.

Bruce B. Edwards, Jesse T. Edwards, for plaintiff in error.

Paul Webb, Solicitor-General, John I. Kelley, Charlie O. Murphy, contra.

CARLISLE, J.

1. Where there is a general insistence in the brief of counsel for the defendant upon all of the errors assigned in his petition for certiorari, upon the overruling of which he assigns error in this court, a mere failure to argue some of the assignments of error does not constitute an abandonment of those issues. Code, §§ 6-1308, 6-1601.

2. On the trial of an accused for cruelty to a child, a witness whose name was not on the accusation or list of witnesses furnished counsel for the accused is not incompetent to testify. Holley v. State, 191 Ga. 804 (14 S. E. 2d, 103), and citations.

3. There is no requirement, either in the Constitution or the statutes, that those persons whose names appear on the accusation as witnesses must testify on the trial of the accused. Harper v. State, 131 Ga. 771, 773 (63 S.E. 339).

4. Where, upon the trial of an accused for cruelty to a child, it is clearly apparent that the only witness for the State, in stating, "There was a piece wrote up in the paper about it," had reference to the fact that she was a registered nurse, and not to the alleged crime of the defendant, and she never stated the contents of the piece which had been published in the paper, the occurrence was of such innocuous character as to constitute no ground for a mistrial.

5. Where the witness indicated in the foregoing division, while on cross-examination, injected into the case the following totally irrelevant question, directed to counsel for the defendant: "Are you the one who came and begged my husband not to swear against Mr. Cole [the defendant]?" when no such issue had been made material to the defendant's guilt or innocence, the question was capable of such a devastatingly prejudicial effect upon the minds of the jurors, that the trial court erred in merely overruling the motion of counsel for a mistrial. The jury might easily infer from the innuendo contained in the question that the defendant, aware of his own guilt, was endeavoring through some attorney, or through the very attorney defending him, to suppress evidence of that guilt.

6. Since the case must be remanded to be tried again for the reason stated in the foregoing division, the general grounds are not considered at this time.

The superior court erred, for the reason stated in division 5, in overruling the petition for certiorari and that judgment must be.

Reversed. Gardner, P.J., and Townsend, J., concur.