30 Ga. App. 633 | Ga. Ct. App. | 1923
In this court counsel for the defendant in error made a motion in which he asked that “the motion for a n'ew trial be dismissed for the reason that the brief of evidence in said casé of file in the office of the clerk of the superior court of Toombs county shows that same was not approved by the trial judge.” Under the express provisions of the act approved August 21, 1911 (Ga. L. 1911, p. 150, sec. 3; Park’s Code, § 6090 (a), there is no merit in this motion. Odom v. Coley, 11 Ga. App. 490 (75 S. E. 822); Farmers Mutual Fire Asso. v. Steed, 20 Ga. App. 329 (93 S. E. 75) and cit.
A motion to continue was made on account of the absence of a witness. The judge overruled the motion, but “ announced that he would have the witness there the next morning.” It is not shown by the motion for a new trial that the trial of the case did not extend into the “ next morning ” and that the witness was not then in court, nor does it appear that any further motion as to the absence of this witness was made. If the witness was brought into court before the trial was ended he could have been sworn; if he was not in court, counsel for the defendant should have called the attention of the court to this fact and renewed his motion to continue;
The record shows that the indictment in this ease was returned to the February term, 1921, and that the case was tried in January, 1923, during the “November adjourned term, 1922.” A ground of the motion for a new trial alleges that the court erred in refusing to allow, the attorney for the accused “ time so that he could properly try the case, . . said attorney for the movant stating in his place as said attorney that he had just
In the state in which the record in this case reached this court, the court cannot say whether or not the complaint that the entire charge " did not fairly and impartially set out the real issues in the case ” is well founded. In the bill of exceptions the charge of the trial judge was not specified “ as necessary to a clear understanding of the errors complained of,” and it was not sent up as a part of the record; and as there is nothing in the record to show that the charge was reduced to writing and is of file in the office of the clerk of the trial court, this court will not order it sent up under section 6149 (4) of the Civil Code of 1910. Crawford v. State, 19 Ga. App. 97 (90 S. E. 1043); Perdue v. State, 17 Ga. App. 299 (86 S. E. 661).
The 5th special ground of the motion for a new trial complains that counsel for plaintiff in error "made an oral request of the court to charge the entire law of the case,” and that the request was refused. A new trial will not be ordered on this ground, because: (a) it is too general and indefinite; (6) it does not appear that the request was made before the judge began his charge to the jury; (c) there is no exception to the rule that the refusal of an oral request to charge is not ground for a motion for a new trial. Shedden v. Stiles, 121 Ga. 638 (2) (49 S. E. 119); Civil Code (1910), § 6084.
The alleged newly discovefed evidence is merely cumulative and impeaching, and its only effect would be to impeach the witnesses for the State; and it is settled by a number of decisions of this court that, even “though the witness sought to be impeached by newly discovered evidence was the only witness against the prisoner upon a vital point in the case, if the sole effect of the evidence would be to impeach the witness a new trial
The other allegations of error are without merit; there is sufficient evidence to support the verdict, and the judgment is
Affirmed.
