Langston v. State, 9968

9968 | Ga. Ct. App. | Nov 16, 1918

Harwell, J.

1, The charge of the court respecting the time limit within which the defendant could be convicted, while inaccurate, is in this case harmless, since the date of the offense as laid in the indictment and as shown by the testimony was well within the statutory period and prior to the finding of the indictment. Adams v. State, 22 Ga. App. 252 (2) (95 S.E. 877" court="Ga. Ct. App." date_filed="1918-05-01" href="https://app.midpage.ai/document/geter-v-state-5610712?utm_source=webapp" opinion_id="5610712">95 S. E. 877).

2. The instructions of the court on the subject of alibi, set out in the 2d and 3d special grounds of the motion for a new trial, are not erroneous, when viewed in the light of the entire charge and of all the facts of the case; and if further instructions were desired upon the subject, an . appropriate timely written request therefor should have been tendered.

3. The court having instructed the jury as to the weight and effect of the defendant’s statement, and upon the subject of reasonable doubt, it was not error to Omit to charge specifically upon the theory of reasonable doubt growing out of the statement of the accused alone, or when considered in connection with the other evidence in the ease. Rouse v. State, 136 Ga. 363 (5), 364 (71 S.E. 667" court="Ga." date_filed="1911-06-14" href="https://app.midpage.ai/document/eastman-cotton-mills-v-suggs-5577887?utm_source=webapp" opinion_id="5577887">71 S. E. 667). See also Vaughn v. State, 88 Ga. 731, 738 (16 S.E. 64" court="Ga." date_filed="1892-02-15" href="https://app.midpage.ai/document/vaughn-v-state-5564525?utm_source=webapp" opinion_id="5564525">16 S. E. 64). This ruling disposes of the 4th and 5th special grounds of the motion for a new trial.

4. Inasmuch as the State’s evidence made out a case of assault with -intent to rape, and the accused relied upon the defense of alibi, a charge upon the subject of assault, or assault and battery, was not only not required, but would have been wholly inappropriate. Accordingly, no merit appears in grounds 6 and 7 of the motion for a new trial. .

Decided November 16, 1918.

Indictment for assault with intent to rape; from Jeff Davis superior court—Judge Highsmith. May 4, 1918.

S. D. Dell, for plaintiff, in error. Alvin V. Sellers, solicitor-general, J. Marie Wilcox, contra.

5. The alleged newly discovered evidence being cumulative and impeaching in character, the court did not err in overruling the -grounds of the motion for a new trial based on such evidence.

S. The evidence authorized the verdict.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.