Parker v. State

28 Ga. App. 673 | Ga. Ct. App. | 1922

Bloodworth, J.

1. “A special ground of the motion for a new trial complains of certain questions asked a witness for the State by the court, and of the answers elicited, on the ground that the questions and answers had a tendency to prejudice the movant’s cause with the jury, and indicated judicial disapproval of certain conduct of the defendant, disclosed by such examination. This ground of the motion, however, fails to show that the questions and answers were objected to at the time, or that there was a motion to exclude this evidence, or a motion for a mistrial of the case. Accordingly, under repeated rulings of this court, no question for adjudication is presented.” Ray v. State, 23 Ga. App. 124 (4) (97 S. E. 555). Under this ruling the 1st, 6th, and 7th grounds of the amendment to the motion for a new trial present no question for determination by this court. See Cordell v. State, 28 Ga. App. 472 (111 S. E. 701).

2. “ Under repeated decisions of this court and of the Supreme Court, each special ground of a motion for a new trial must be complete within itself; and when so incomplete as to require a reference to the brief of the evidence, or to some other portion of ihe record, in order to determine what was the alleged error and whether such error was material, the ground will not be considered by the reviewing court.” McCall v. State, 23 Ga. App. 770 (99 S. E. 471). Applying this ruling to grounds 2 and 3 of the amendment to the motion for a new trial, they are incomplete. From them alone we cannot tell who the person is who is referred to therein as “ he ” and “ him,” or whether the evidence is material, or is prejudicial to the complaining party. Moreover, the newspaper clipping which was ruled out was clearly inadmissible.

3. “ A ground of a motion for a new trial in which error is assigned on the exclusion of certain testimony is insufficient when it does not appear from the ground itself that the exclusion of the testimony was prejudicial to the complaining party.” Campbell v. Walker, 20 Ga. App. 88 (4) (92 S. E. 545). The 4th ground of the amendment to the motion for a new trial is not sufficient within itself to show that the controversy between the court and counsel, as therein stated, “ was prejudicial to the complaining party.” It is true that a party who voluntarily calls a witness cannot im*677peach him unless he.“ can show to the court that he has been entrapped by the witness by' a previous contradictory statement.’’ Penal Code (1910), § 1050; Civil Code (1910), § 5879. This statement may be made to the party or his attorney, or “ to some third person with instructions to communicate it or for the purpose of being communicated to the party or his counsel, and this was in fact done and the party acted thereon.” Burns v. State, 20 Ga. App. 79 (2) (92 S. E. 548), and citations. But before this court can consider such a ground of the motion for a new trial, it must appear from the allegations therein that the witness had in truth previously made a contradictory statement, and what that statement was. The attorney in this case did not undertake or offer to tell the court what the alleged previous contradictory statement was, or how or in what manner he had been entrapped. Without this information this court cannot say whether the statements were contradictory, or that the ruling of the court was harmful to the cause of the defendant.

4. There is no merit in special ground 5 of the motion for a new trial. “A party offering evidence is not required in the first instance to show that it is competent; for all evidence is admitted as of course, unless a valid ground of objection is interposed by the opposite party, or by the court of its own motion to prevent the introduction of needless or irrelevant testimony. In a sense all evidence is prima facie admissible, and the burden is upon the objecting party to state at the time some reason why it should not be admitted. . It will not be sufficient for him to say, ‘ I object/ or ‘I object because the evidence is not competent’ or ‘is inadmissible.’ The attention of the court must be called to the specific ground of objection at the time the evidence is offered, and a failure so to do will be considered as a waiver.” Andrews v. State, 118 Ga. 2, 3 (43 S. E. 852). See Atlantic Coast Line Railroad Co. v. Stovall-Pace Co., 24 Ga. App. 249 (3) (100 S. E. 657), and citations.

5. Special ground 8 of the motion for a new trial, not being approved by the trial judge, will not be considered.

6. When the entire charge is considered, and in the absence of a proper and timely written request for fuller instructions, there is no merit in grounds 9 and 12 of the motion for a new trial, each of which complains of the failure of the judge to charge more *678fully on certain propositions which, were embodied, in the charge of the court.

7. For no reason assigned did the court err either in the instructions given to the jury in reference to the further consideration of the case, when they reported to him that they had not agreed upon a verdict and that this failure to agree was because of a question of fact, nor in his instructions to them as to the proper form of the verdict after they had returned a verdict not in compliance with his instructions as to the form of the verdict.

8. There is ample evidence to support the verdict, which has the approval of the judge who tried the case.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.