Cawthon v. State ( 1941 )

ON MOTION FOR REHEARING. The defendant argues that the evidence of the Allen and Kent floggings was not admissible for there was no evidence to show that the defendant was in any way connected with such floggings, and that no one identified the defendant as one of the participants therein. It might be noted from the record that the evidence of the Allen flogging was admitted conditionally under the following ruling of the court: "Under that statement of the solicitor I admit the testimony, but I will rule it out unless you do connect it up." No subsequent objection was made. No motion was made to rule it out, therefore the admission of this evidence is no cause for a new trial. Sloan v. State, 35 Ga. App. 347 (133 S.E. 269). With reference to Kent's flogging, it might be noted that the defendant was identified as the head of the "wrecking crew" of 1939. One Bishop was a member of the "wrecking crew" and was identified by Kent as one of the persons who participated in flogging him. This was a circumstance along with the other circumstances which might be considered by the jury in connecting the defendant with that flogging and in determining the guilt of the accused of the crime for which he was found guilty, all of which was a part of a general plan and scheme of the "wrecking crew." We do not think the defendant was deprived of his constitutional right of a public and speedy trial by an impartial jury as urged by the defendant. The other grounds of the motion for rehearing being considered, the

Rehearing is denied. Broyles, C. J., and Gardner, J.,concur.