26 Ga. App. 485 | Ga. Ct. App. | 1921
Lead Opinion
Judgment affirmed.
Dissenting Opinion
dissenting. I do not disagree with the first ruling announced in the decision, but I do disagree with the riding in the second division of the decision and to the affirmance of the judgment overruling the motion for a new trial.
Upon the trial of the case the prosecutor had testified that his feeling toward the defendant was good. Upon cross-examination the defendant sought to inquire of the prosecutor if he had not-had a recent previous difficulty with the defendant, for the purpose of rebutting the statement that no ill-feeling existed between them. The court refused to permit the defendant to so interrogate the prosecutor. As laid down in Smith v. State, 12 Ga. App. 13 (2) (76 S. E. 647), it was error to deny the defendant this right. The majority opinion holds that since the defendant did not show in his motion for a new trial upon what ground the court ruled out the evidence which he offered on eross-examina*tion, the assignment of error was insufficient. It is to this technical ruling that I do not agree. The party offering evidence which is rejected, in order to have this court pass upon a ground of a motion for a new trial which complains of the judge’s refusal to admit the evidence, does not have to show upon what ground the court excluded the evidence. .The only burden that the movant has to carry is to show that legal testimony has been
The party offering evidence which is rejected does not have to show in his motion for a new trial upon what ground the evidence was excluded. The court may have ruled the evidence out without objection, and it may be impossible for the party offering the evidence to know what moved the court. The only burden to be carried by the party offering evidence is to show that the evidence was admissible. In this case error is not assigned upon an objection to evidence which was overruled, but error is here assigned upon the refusal of the court to admit legal testimony, and it does not make any difference upon what ground the evidence was excluded.
The dissent which I file in this case is the same in principle as the dissent in the case of Summerlin v. State, 25 Ga. App. 572 (103 S. E. 832), in so far as this identical question is involved.