135 Ga. 357 | Ga. | 1910
Thomas H. Jones was tried on an indictment charging him with murder. The person alleged to have been feloniously» killed was Wiley Bishop. The evidence introduced on the trial was voluminous and conflicting. Eye-witnesses testified to the shooting of Bishop by the accused under circumstances which made the killing murder; other witnesses testified to facts that might have been considered as justifying or mitigating the offense; and still others testified that the accused did not fire the fatal shot, but that it was fired by John Jones. There were two counts in the indictment; one charging that the accused killed the deceased by shooting him with a pistol, and the other charging that he inflicted the wounds which resulted in death by striking the deceased on or about the
■ 1. After the verdict in this case was made, but before it was published, counsel for defendant made a motion for a mistrial, based upon certáin alleged irregularities and improper conduct on the part of certain jurors; which motion, after hearing evidence, the court overruled; and it is recited in the bill of exceptions that the plaintiff in error Assigns error upon this ruling of the court. No pendente-lite exceptions were filed, and the direct bill of exceptions in the case sued out to the judgment of the court overruling the motion for 'a new trial was not tendered within twenty days after the ruling complained of. Hence the assignment of error just referred to can not be considered by this court.
2. While the exception to the ruling of the judge in refusing a mistrial was taken too late, considered as a direct exception to that ruling, the question as to whether the judge properly overruled the motion is raised in one of the grounds of the motion for a new trial; and it is to be considered there in the light of the showing made by the plaintiff in error and the counter-showing made by the State.
When the jurors, after having been charged with the consideration of the case, returned to the court-room and announced that they had made a verdict, counsel for the accused, before the rendition of the verdict, made a motion for a mistrial, stating to the court as a ground therefor that, he had received information to the effect that certain jurors had stated^to the officers of the court in charge of the jury that they had practically decided upon the verdict in the case the night before and that they stood eleven- to one, and that this was prior to the charge of the court and before the argument of counsel had been concluded; and on the further ground that certain jurors had asked the bailiff in attendance upon the jury as to what was the bailiff’s opinion about the case. In support of the motion counsel had one of the bailiffs in charge of the jury sworn before the court; and this bailiff, in response to questions directed to him, stated that two or three members of the jury questioned him
In consideration of the counter-showing made by the State, we do not think that there was any abuse of discretion on the part of the court in refusing to grant a new trial because of misconduct of the bailiff and certain jurors engaged in the trial of the case. The conduct of the bailiff testified to by himself, in speaking to a member of the jury in relation to the case on trial, whether it was in answer to a question propounded to him by one of the jurors or not, was grossly improper; and the conduct of a certain member of the jury, in addressing the remark to the bailiff as set out above,
3, 4. Another ground of the motion for a new trial complains of the admission of certain testimony over the objections of counsel for the accused. In this ground of the motion are embraced portions of the testimony of numerous witnesses, covering several pages of the record. Much of this testimony was clearly admissible; and while portions of it are objectionable, that which is objectionable is not specially excepted to -and segregated from that which was admissible, but the objection, as it appears stated in the motion, did not point out nor indicate the objectionable portions; and for that reason the exception to the admission of the testimony is without merit. Besides, it does not appear in tliis ground of the motion what objections were urged to the admission of the testimony at the time it was offered; and because of this defect, also, the question as to whether the testimony should have been admitted or not is not properly raised in the motion for adjudication.
5, 6. The principles contained in headnotes 5 and 6 require no elaboration. They are mere restatements of rulings which have been made more than once by this court.
7. The ground of the motion based upon newly discovered evidence is without merit, it appearing that the evidence consisted merely in the fact that subsequently to the conviction of the plaintiff in error another person had been indicted for the murder of the same person for whose murder the plaintiff in error was convicted.
The evidence authorized the verdict, and no reason 'is shown for disturbing the judgment of the court below refusing a new trial.
Judgment affirmed,.