40 Ga. App. 733 | Ga. Ct. App. | 1930
Lon Ogletree was convicted of possessing whisky. He now excepts to the overruling of his motion for a new trial, based on the usual general grounds, and on two special grounds complaining of language used by the solicitor in addressing the jury.
T. J. Ogletree, his two sons, Lon and Loomis, and the boys’ stepmother lived in the home of T. J. Ogletree." Mrs. Ogletree had a
The defendant stated that he never touched'any-whisky at Cut-wright’s, and was standing six or seven feet from where Cutwright was filling the bottles; that he knew nothing about the whisky being in his room; and that when he heard that his■ stepbrother had carried the- large package to his home, and that the officers had found whisky in his room, he knew that he would be arrested, and went to Alabama because he could not give bond. Unquestionably the evidence supported the verdict.
The first of the two special grounds of the motion for a new trial alleges that the following statement of the solicitor to the jury was highly prejudicial to the defendant’s case and prevented him from
If counsel was not satisfied with the court’s admonitions to the jury, and thought that notwithstanding them his client’s case had been so prejudiced by the solicitor’s remarks that he could not get a fair trial by the jury that heard them, he should have made a motion for a mistrial. Under the circumstances in this case, the defendant could not sit quiescent while the alleged injurious remarks were being made by the solicitor, take the chance of an acquittal, and then, after conviction, successfully ask for á new trial because of those remarks. See Herndon v. State, 111 Ga. 178 (3) (36 S. E. 634); Patton v. State, 117 Ga. 230 (10) (43 S. E. 533); Bird v. State, 142 Ga. 596 (6) (83 S. E. 238, Ann. Cas. 1916C, 205); Redd v. State, 28 Ga. App. 483 (111 S. E. 685).
The evidence supports the verdict, and for no reason assigned did the court err in overruling the motion for a new trial.
Judgment affirmed.