Quinn v. State
| Decision Date | 08 October 1918 |
| Docket Number | 9707. |
| Citation | 97 S.E. 84,22 Ga.App. 632 |
| Parties | QUINN v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
In the motion for new trial it is complained that "the court erred in allowing the evidence of the witness J. E. Varn with reference to getting whisky from some young man, to remain in the record after defendant's counsel moved to exclude the same." What this evidence is, "with reference to getting whisky from some young man," is not shown, and our Supreme Court and this court has repeatedly held that a ground of a motion for new trial assigning error upon the admission of evidence will not be considered, unless the evidence is sufficiently set forth for the question of its admissibility to be determined without reference to other parts of the record. Pound v. Smith, 146 Ga. 431, 91 S.E. 405 (5); Willbanks v. Byrd-Matthews Lumber Co., 146 Ga. 750, 92 S.E. 281 (3); Bank of Norwood v Chapman, 19 Ga.App. 709, 92 S.E. 225 (3); Copeland v. Ruff, 20 Ga.App. 217, 92 S.E. 955 (2).
Where evidence for the state is objected to by counsel for the defendant upon the ground that it does not connect the defendant with the alleged crime, and the trial judge says "I will exclude it unless [the solicitor general] shows some connection with the defendant," but no motion to rule it out is thereafter made, counsel for the defendant will be held to have waived his objection, and it is not error for the court to fail to exclude the testimony later on his own motion. Lindsay v. State, 138 Ga. 819 (7) 823 (7), 76 S.E. 369; Cawthon v. State, 119 Ga. 396 46 S.E. 897 (7); Stone v. State, 118 Ga. 705, 45 S.E. 630 (9), 98 Am.St.Rep. 145; Thurman v. State, 14 Ga.App. 543, 81 S.E. 796 (2).
The court did not err in permitting a witness to testify that he "had seen others go to the place of business of defendant and come away with whisky," on the ground that this was a conclusion of the witness. This evidence was not a conclusion, but the statement of a fact, which was clearly admissible as a circumstance corroborative of other evidence in the case. Reddick v. State, 15 Ga.App. 437 (2), 442, 443, 83 S.E. 675; Gary v. State, 7 Ga.App. 502, 67 S.E. 207 (3); Bonner v. State, 2 Ga.App. 711, 58 S.E. 1123 (1); Cole v. State, 120 Ga. 485, 48 S.E. 156 (1).
There is no merit in the ground of the motion for a new trial that the court did not charge the jury "the law with reference to the first ground in the accusation." An examination of the charge of the court will show that the judge did charge the jury in reference to this "ground," and, if a fuller charge in reference thereto was desired, a proper and timely written request should have been made, as provided by the statute.
Error is assigned on the charge of the court with reference to the second count of the accusation. The jury having found the defendant guilty on the first count only, this was an acquittal of the crime charged in the second count; and even if the court committed error in his charge in reference to this count, it could not have harmed the defendant. Hathcock v. State, 88 Ga. 91, 13 S.E. 959 (2).
Where an accusation contained two counts, and the judge instructed the jury, if "they were satisfied of the guilt of the defendant beyond a reasonable doubt, to return a verdict of 'We, the jury, find the defendant guilty,' otherwise, 'We, the jury, find the defendant not guilty;' " and the jury, notwithstanding this charge, found the defendant guilty on the first count only, the error in the charge could not have been harmful to the defendant. This ruling covers grounds 6 and 10 of the amendment to the motion for a new trial.
There is no merit in ground 7: "While it is the duty of a judge in the trial of a criminal case to state the contentions of both the state and the defendant, still, in the absence of a request for more definite instructions, a statement by the court that the grand jury has returned an indictment against the defendant, charging him with the offense of murder, and that to this the defendant has filed a plea of not guilty, which makes the issue for them to try, sufficiently presents the issue." Faison v. State, 13 Ga.App. 180, 79 S.E. 39 (1). And see Wilensky v. State, 15 Ga.App. 360, 83 S.E. 276 (2).
(a) "The fact that the presiding judge stated in his charge 'in two separate and distinct places,' the language or substance of the indictment, did not unduly emphasize the contentions of the state...
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