Foskey v. State

• Decision Date: 28 November 1903
• Citation: 45 S.E. 967,119 Ga. 72
• Parties: FOSKEY v. STATE.
• Court: Georgia Supreme Court

45 S.E. 967

119 Ga. 72

FOSKEY v. STATE.

Supreme Court of Georgia

November 28, 1903

Syllabus by the Court.

1. This court will not consider a complaint in a motion for a new trial that the court erred in qualifying and restricting certain instructions which were requested in writing by counsel, when the requests referred to are not embodied in the motion, and it is impossible to tell, in the absence of such requests, whether the qualifying charge complained of was or was not erroneous.

2. On the trial of a criminal case, it was not error for the court to instruct the jury, in effect, that they should base their verdict solely on the evidence, and not be influenced by sentiment or the fact that the accused had been in jail for a long time.

3. Complaints of the admission of evidence, or of conduct of the court in regard thereto, which cannot be clearly understood without reference to such evidence, will not be considered unless the same is brought before this court either in the motion for a new trial or the bill of exceptions.

4. The various rulings of the court of which complaint is made, and which are not specifically dealt with, present no cause for reversing the judgment of the court below. The finding of the jury was fully warranted, and it was not error to refuse to grant a new trial on the ground that the verdict was contrary to law and the evidence.

Error from Superior Court, Pulaski County; D. M. Roberts, Judge.

Berry Foskey was convicted of manslaughter, and brings error. Affirmed.

J. H Martin, for plaintiff in error.

J. F De Lacy, Sol. Gen., and W. L. Grice & Sons, for the State.

CANDLER J.

The accused, Foskey, was tried under an indictment charging him with the murder of Holmes, and was found guilty of voluntary manslaughter. He moved for a new trial, his motion was overruled, and he excepted.

1. The court charged the jury as follows: "I have some requests here to charge, and of course you will understand that, when I read one, I charge it as being the law. I don't mean to say, however, that it is the law applicable to this case. As you receive the law from the court, you then having the evidence in your mind, will determine whether the law is applicable to the evidence. You are the sole judges of the application of the law to the evidence in the case, and of course, if you think they are applicable, you will give that law just such force as you think it is entitled to, applying it to the evidence if you think it is applicable." This charge is assigned as error, on the ground that it was misleading, and "tended to impress upon the jury that the law applicable to the case was that received from the court other than the requests." While the language of the charge was inapt, we do not think it is susceptible of the construction sought to be placed upon it, nor that a reasonably intelligent jury would be misled by it as to the true principle of law which it is evident that the trial judge intended to announce. But be that as it may, it is clear that the ground of the motion in which this complaint is made is not one upon which a new trial could properly be granted. It appears from the motion that the charge referred to "was made immediately before and preliminary to charging and reading to the jury the several written requests made by defendant in writing before argument concluded and set forth in the charge of the court, *** marked and indicated as 'A,' 'B,' 'C,' 'D,"' etc.; none of the written requests to charge being set forth in the motion. It will have been seen that the charge complained of referred to the requests made by counsel for the plaintiff in error, which are designated by letters referring to other parts of the record, and that the applicability of the charge depends entirely upon the applicability of the instructions requested. Indeed, the charge complained of is almost unintelligible without reading in connection with it the requests to which it referred. It has been ruled time and again that this court will not consider assignments of error in a motion for a new trial which depend, for an intelligent understanding, upon matters...