Robert Cash was indicted for the offenses of armed robbery and aggravated assault. The jury hearing the case found him guilty, his motion for new trial was overruled, and the present appeal filed.
1. On the trial of the case the defendant presented evidence of alibi. One ground of the amended motion for new trial is based on newly discovered evidence to support the defendant’s claim of alibi. Both the evidence adduced on the trial and the newly discovered evidence as to alibi place the defendant at the same gathering.
Pretermitting any question as to sufficiency of such ground of the motion for new trial to be considered, since such testimony would be cumulative at most of testimony actually adduced, the judgment overruling such ground of the motion for new trial was not error. See
Coleman v. State,
2. While testimony that the defendant’s sister stated that the defendant had never been arrested may have been subject to objection, such testimony, without more, is not ground for a motion for mistrial as placing the defendant’s character in issue.
3. The trial court did not err in admitting courtroom identification of the defendant by the victim over the objection that the victim had been shown a picture of the defendant along with other photographs prior to the defendant’s arrest and the victim had picked the defendant’s picture from such group of photographs as a picture of the person who robbed and shot him, where the victim testified as to the opportunity he had to view the defendant at the time the alleged crimes took place and that his identification was based upon such observation and not upon the picture. Compare Kirby v. Illinois,
4. Where during the trial of a case a witness, on objection of the
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defendant, is not permitted to testify and the court explains the reason for excluding such testimony to the jury, it is not cause for reversal in the absence of some objection to the procedure followed by the trial court prior to the return of the adverse verdict. Compare
Jackson v. State,
5. The trial court erred in instructing the jury on the sentencing portion of the trial: "[T]he court has the power to probate any part of any sentence, except a life sentence, if the court sees fit to do so.”
In 1955, the General Assembly enacted a statute which prohibits the jury from being exposed to argument by attorneys as to clemency which may be granted to convicted criminals "by the Governor, State Board of Pardons and Paroles or other proper authority vested with the right to grant clemency.” Ga. L. 1955, pp. 191, 192 (Code Ann. § 27-2206).
In
McGruder v. State,
6. The evidence adduced on the trial of the case authorized the verdict of guilty, but in view of the holding in the preceding division of the opinion, a new trial on the question of the sentence of the defendant must be had.
Judgment affirmed as to the conviction; reversed with direction that a new trial be had as to the sentence to be imposed on each count of the indictment.