Brown v. State

26 Ga. App. 593 | Ga. Ct. App. | 1921

Broyles, C. J.

1. It does not appear that the judge abused his discretion “ in refusing to allow the defendant to exhibit his limb to the jury ” during the trial of the case.

2. The charge of the court upon the subject of alibi was substantially correct and was not error for any reason assigned.

3. The ground of the motion for a new trial, complaining of the refusal of a certain request to charge, can not be considered, as it is not stated in the ground that the request was tendered the court before the jury retired to consider the case. Seaboard Air-Line Railway v. Barrow, 18 Ga. App. 261(4) (89 S. E. 383).

4. “A complaint that the verdict is contrary to the charge of the.court is merely a variation of the general ground that the verdict is contrary to law, and presents no question for review.” Orr v. State, 24 Ga. App. 143(3) (99 S. E. 893), and citations.

5. The ground of the motion for a new trial, complaining that counsel for the defendant were not given an opportunity to poll the jury after the verdict, is disapproved by the trial judge.

Decided April 13, 1921.

Indictment for larceny of automobile; from Fulton superior court- — Judge Humphries. December 4, 1930.

Application for certiorari was denied by the Supreme Court.

Paragraph 1 of the decision relates to the following ground of the motion for a new trial: “ Because the judge erred in refusing to allow the defendant to exhibit his limb to the jury, thereby showing physical evidence that he was ’incapable of driving an automobile.” From the record it appears that the limb referred to was a leg. In his statement at the trial the defendant said: “ My leg has been broken. I have got a stiff leg, and I haven’t got any pressure against it, and I couldn’t drive an automobile.”

The charge of the court as to alibi was complained of on the ground that it “was not in the language of the law on the subject of alibi, and was prejudicial to the rights of the accused.” This part of the charge was as follows: “ Alibi, as a defense, involves the impossibility of the prisoner’s presence at the scene of the offense at the time of its commission, and the range of the evidence in respect to time and' place must be such as reasonably to exclude the ’ possibility of presence. Alibi, as a defense, should be established to the reasonable satisfaction of the jury, not beyond a reasonable doubt, but to the reasonable satisfaction of the jury, and, if so established’, that is to say, if it be established to the reasonable satisfaction of the jury that the defendant was not present at the place at the time of the commission of the offense, if such offense was committed, then it would be the duty of the jury to acquit, or, after considering the testimony on the question of alibi along with all other testimony in the ease, it is the duty of the jury to consider all of the evidence in the case, and if the jury should entertain a reasonable doubt as to the guilt of the defendant, it is their duty to give the benefit of that doubt and acquit.”

6. The ground of the motion for a new trial, based upon the allégéd-newly discovered evidence of certain witnesses, is too defective to be'.considered, since the affidavits of the witnesses' are not accompanied by.'the, supporting affidavits as to the character, residence, etc., of -thA .Witnesses, required by the statute. . -

7. This was in some respects a close case and the evidence was in sharp conflict. The evidence for the defendant authorized his- acquittal, while that introduced by the State supported the verdict of' guilty. The finding of the jury having been approved by the presiding judge, and no error of law appearing, this court is without jurisdiction to interfere.

Judgment affirmed.

Luhe and Bloodiuorth, JJ., concur. Neufville & Neufville, C. Don Miller, for plaintiff in error. John A. Boykin, solicitor-general, B. A. Stephens, contra.