Archer v. State

The court did not err in overruling the amended motion for a new trial for any of the reasons assigned.

DECIDED OCTOBER 11, 1946. The defendant was convicted of the offense of unlawfully shooting at another. He filed his amended motion for a new trial, which was overruled. On this judgment he assigns error.

(a) The evidence, under the general grounds, is sufficient to sustain the verdict.

(b) Special ground 1 complains of the admission of certain testimony over objections of the defendant. This testimony related to a conversation out of his presence. The State contended that it was admissible on the theory of a conspiracy between the defendant and others who were indicted for the same offense, but not jointly with the defendant. After reading the whole record carefully, we are of the opinion that the court did not err in admitting this testimony over the objections. There is no assignment of error to the effect that the court did not fully instruct the jury as to this phase of the case. In fact there is no exception to the charge of the court for any reason.

(c) Special grounds 2 and 3 also relate to the admission of testimony over the objection of the defendant. These two grounds are not unqualifiedly approved as correct by the trial judge. It is well established that an amended motion for a new trial which does not have the unqualified approval of the judge is not subject-matter for consideration by this court. In the instant case, while the judge does certify that the amended grounds are true to the extent alleged, he incorporates the reasons given at the time of the admission of the testimony. Therefore the trial court disagrees with the correctness of the conclusions in the assignments of error as alleged by the plaintiff in error. After a careful consideration of the record as to these two special grounds, we are of the opinion that they do not warrant a reversal from any standpoint.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.