Kennedy& v. State, 24597.

• Decision Date: 20 July 1935
• Docket Number: No. 24597.,24597.
• Citation: 181 S.E. 139,51 Ga.App. 543
• Parties: KENNEDY。 v. STATE.
• Court: Georgia Court of Appeals

51 Ga.App. 543

181 S.E. 139

KENNEDY。

v.STATE.

No. 24597.

Court of Appeals of Georgia, Division No. 1.

July 20, 1935.

Syllabus by the Court.

The evidence for the state, taken in connection with the evidence for the defendant, and defendant's statement demands a verdict of guilty, and the error complained of in the amendment to the motion for new trial does not require the grant of a new trial.

MacINTYRE, J., dissenting.

Error from Superior Court, Tattnall County; J. H. Thomas, Judge.

J. C. Kennedy was convicted of assault and battery, and he brings error.

Affirmed.

R. L. Dawson, of Ludowici, and B. D. Dubberly, of Glennville, for plaintiff in error.

J. P. Dukes, Sol. Gen., of Pembroke, for the State.

GUERRY, Judge.

The defendant was charged with assault with intent to murder. He was convicted of the offense of assault and battery. The evidence for the state made out a case of unprovoked assault and battery at least. The defendant in his statement admitted that he beat the prosecutor with a whip or stick. His statement further showed his animus towards the prosecutor, and the only attempt at justification was that the prosecutor "jerked out his knife, " but nowhere does it appear, either from the statement or the evidence, that any attempt was made by the prosecutor to use it. As was said in the case of Seyden v. State, 78 Ga. 105, 110: "We are of opinion that the verdict was demanded by the evidence, and that another hearing, if the law be regarded, would result in the same way; and where this is the case, as has been frequently held, the new trial will be refused." Also in Williams v. State, 15 Ga. App. 311, 82 S. E. 817, it was said: "When in a criminal case, not only the evidence, but the defendant's statement as well, demanded the verdict rendered, a new trial will not be granted even though the judge may have committed errors in his charge to the jury, in rulings on the evidence, and in refusing to order a mistrial on account of improper argument of counsel. If the jury reached the only result which was legally possible in the case, the judgment of the trial judge will not be reversed merely for the purpose of allowing the case to be heard again, in order that the same result may be more technically reached." See, also, in this same connection, Usry v. State, 17 Ga. App. 268, 86 S. E. 417; Tyre v. State, 35 Ga. App. 579, 134 S. E. 178; Bernolak v. State, 18 Ga. App. 7, 89 S. E. 302; Haupt v. State, 108 Ga. 60(2), 33 S. E. 829. The court did not err in refusing a new trial.

Judgment affirmed.

BROYLES, C. J., concurs.

MacINTYRE, J., dissents.

BROYLES, Chief Judge (concurring).

The evidence in this case demanded the verdict finding the defendant guilty of assault and battery. Therefore, the fact that one of the jurors who tried the case was related to the prosecutor within the prohibited degrees does not require a new trial. Frazier v. Swain, 147 Ga. 654 (3), 95 S. E. 211; Tyre v. State, 35 Ga. App. 579, 580, 134 S. E. 178.

MacINTYRE, Judge (dissenting).

I do not think that the evidence and the defendant's statement demanded a verdict of guilty. One of the witnesses for the defendant testified in part as follows: "When we got there Mr. Purcell [prosecutor] was checking the logs. When we drove up Sank [defendant] walked to the truck and asked Mr. Purcell what right he had to be checking the logs and Mr. Purcell asked him what damn business it was of...