Dees v. State
| Citation | 152 S.E. 913,41 Ga.App. 321 |
| Docket Number | 20292. |
| Decision Date | 15 April 1930 |
| Parties | DEES v. STATE. |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court.
New trial to be granted for error in ruling of judge requires proof of injury as well as error; ruling refusing to purge jury as to relationship to prosecutor did not show injury requiring new trial, where not showing refusal left any one so related.
The motion for a new trial alleges that the court erred in refusing to the accused the "right to have the jury purged as to relationship to the legal prosecutor in the case, although a timely demand for purging the jury was duly made." Before a new trial should be granted because of an alleged error in the ruling of the judge, injury, as well as error, should be shown. No injury to the accused is shown by this ruling, for it is not shown by this ground that the failure to purge the jury left thereon any one who was related to the prosecutor.
Special ground 3 of the motion for a new trial is not complete and understandable within itself.
Ground for new trial for variance between indictment and evidence not showing wherein there was variance held too general for consideration.
Special ground 4 is too general for consideration. It does not show wherein there is "a variance between the indictment and the evidence."
Special ground for new trial not unqualifiedly approved by trial judge cannot be considered.
Special ground 5 is not unqualifiedly approved by the trial judge. Brazil v. City of LaGrange, 37 Ga.App. 500(3), 140 S.E. 782; Moore v. State, 37 Ga.App. 829 (1a), 142 S.E. 202; Hammond v. State, 34 Ga.App. 234(1), 128 S.E. 918.
Ground for new trial must be complete and understandable within itself without reference to other part of record, and must point out error.
Each ground of a motion for a new trial must be complete and understandable within itself without reference to any other part of the record. The ground itself must point out the error. Sharpe v. State, 34 Ga.App. 177(2), 128 S.E 683. To ascertain what "two names" referred to in ground 6 of the motion are similar in sound, it would be necessary to look to other parts of the record. Cheves v Hitz, 39 Ga.App. 531(4), 147 S.E. 778; Wellborn v State, 32 Ga.App. 55(2), 122 S.E. 648; Hayes v State, 36 Ga.App. 668(g), 137 S.E. 860.
Ground for new trial not showing wherein charge was adverse and prejudicial and requiring reference to another ground held incomplete.
For no reason alleged is the charge of which complaint is made in ground 7 of the motion error. Moreover, this ground is not complete within itself. It does not show wherein it was adverse to the defendant and prejudicial to his legal rights. To be understood, this ground would require reference to another ground of the motion. Jennings v. State, 22 Ga.App. 550(1), 96 S.E. 397; Bowen v. Smith-Hall Grocery Co., 146 Ga. 157(4), 91 S.E. 32.
Charge that idem sonans is no longer infallible test in determining variance between allegata and probata, but that identitate personæ and not identitate nominis should be true issue, held proper.
There is no error in that portion of the charge incorporated in ground 8 of the motion.
The verdict is not without evidence to support it.
Error from Superior Court, Colquitt County; W. E. Thomas, Judge.
Perry Dees was convicted of a theft, and he brings error.
Affirmed.
P. Q. Bryan, of Moultrie, for plaintiff in error.
G. C. Spurlin, Sol. Gen., of Valdosta, for the State.
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