Phinazee v. State

May 1, 1918
9581
Reporters:
, ,
Before:
Harwell
Harwell, J.

(After stating the foregoing facts.) 1. The first special ground of the motion for a new trial complains that the court erred in ruling out testimony of Grant Eeid, a witness for the State, and the question in response to which it was given, as follows: “Q, Haven’t you been’ arrested about this same affair? A. Yes, sir.” This testimony, we think, was competent, and should have been admitted, as illustrating the witness’s interest in the case. The court adds to this ground a note stating that “The defendant • had the benefit that-the admission of this testimony would have afforded, because his counsel was permitted to and did argue to the jury the weakness of ‍‌‌​​​​‌‌​‌‌​‌‌‌‌​‌​‌​​‌​​​​​‌‌​​​‌​​​‌‌​​​‌‌‌‌​​‌​‌‌‌​​‌​‌‌‌‌​‌​‌​​‌‌‌​‌‌​​‌​‌‌​​‌​‌​‌​​‌​‌​​‌​‌‍the witness Eeid’s testimony, for the reason that Eeid had been charged with this same crime, and was trying to clear himself by showing defendant’s guilt.” Under the facts .thus shown we think that the exclusion of this testimony’ was not so prejudicial as to affect the verdict, and therefore was not such error as would afford reason for the grant of a new trial.

2. In the second special ground of the motion for a new trial the following excerpt from the charge of the court- was complained of: “In cases founded upon direct or positive testimony the rule of reasonable doubt applies; but in cases founded upon indirect or circumstantial evidence, such as this case is, the law requires that the proven facts and circumstances shall not only be consistent with the guilt of the accused, but shall be inconsistent with his innocence, and.must exclude every other reasonable hypothesis save that the accused is guilty. In this case the burden is on the *261State to prove to your satisfaction, and to this extent, the guilt of this accused, before you would be authorized to convict him.” We do not think that this excerpt from the charge’ is subject to the criticism that it took away from the jury the right to apply the doctrine of reasonable doubt. Immediately following this instruction the judge,charged on the subject of reasonable doubt, ‍‌‌​​​​‌‌​‌‌​‌‌‌‌​‌​‌​​‌​​​​​‌‌​​​‌​​​‌‌​​​‌‌‌‌​​‌​‌‌‌​​‌​‌‌‌‌​‌​‌​​‌‌‌​‌‌​​‌​‌‌​​‌​‌​‌​​‌​‌​​‌​‌‍and ‘in other portions of the charge he instructed the jury that if they had a reasonable ‘doubt of the defendant’s guilt that they should acquit him“. The court in the charge excepted to was simply giving to the jury the rule applicable in cases founded upon circumstantial evidence, and instructed them that before they would bo authorized to convict the defendant, the evidence must come up to, that rlile. We think therefore there is no merit in this groiind of the motion.

3. The third special ground of the motion .complains of the following charge; taken from the Penal Code, § 1013: “The true rule in criminal cases is not whether it be possible that the conclusion at which the testimony points may be false, but whether there is sufficient testimony to satisfy the minds of fair, impartial jurors that the defendant -is guilty as charged in the indictment beyond a reasonable doubt.” We, do’ not think that this charge, when taken in connection with the charge as a whole, is erroneous for th‘e reasons alleged,—that it excluded the defendant’s statement from consideration, and expressed an opinion that testimony pointed to his guilt. The court charged fully and correctly the law as to the statement of the accused. See Early v. State, 14 Ga. App. 467 (2), 469 (81 S. E. 385), and cit.

4. Ground 4 alleges that the judge erred “in charging the, jury, on pages 2 ‍‌‌​​​​‌‌​‌‌​‌‌‌‌​‌​‌​​‌​​​​​‌‌​​​‌​​​‌‌​​​‌‌‌‌​​‌​‌‌‌​​‌​‌‌‌‌​‌​‌​​‌‌‌​‌‌​​‌​‌‌​​‌​‌​‌​​‌​‌​​‌​‌‍and 3 of his written charge, the law in regard to* confessions in criminal cases, for the reason that the -alleged statements made by the defendant to the witness Grant Reid were not in the nature of a confession, but‘nothing more or less than inculpatory admissions.” Ground 5 alleges that the judge‘erred “in charging the jury on page two and three of his written charge, on the doctrine of confessions,” etc. These grounds are not complete and can not he considered. This court and the Supreme Court have repeatedly held that the grounds of a motion for a new trial must be complete within themselves, and can not be con- *262, sidered when it is necessary to refer to other portions of the record in order to understand them.

5. Ground 6 complains of the following charge: “If you find there was hope or fear, but if you find that the hope or fear originated in his own mind and was not induced or kindled by the acts, conduct, or words of another,-’ and that, under the influence of the hope or fear so originated, defendant made the confession,’ thisi.‘5fould not exclude the confession from evidence.” We do not think this-instruction is erroneous as being unwarranted by the evidence and inapplicable to the facts, or as expressing an opinion on the part of the court that- a confession had been made. ‍‌‌​​​​‌‌​‌‌​‌‌‌‌​‌​‌​​‌​​​​​‌‌​​​‌​​​‌‌​​​‌‌‌‌​​‌​‌‌‌​​‌​‌‌‌‌​‌​‌​​‌‌‌​‌‌​​‌​‌‌​​‌​‌​‌​​‌​‌​​‌​‌‍By reference to the court’s charge it appears that the court submitted to the jury the question as to whether or not any confession had been made by the- defendant, and charged the jury fully and fairly on this subject and in immediate connection with this excerpt. ’

6. In reference to the remaining grounds of the’ motion the brief of counsel for the plaintiff in error says merely: “We insist upon all of the assignments. of error in the 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, and 18th grounds in the amendment to the motion for a new trial, for the‘reasons therein stated.” Under repeated rulings of this court, these grounds, not being argued in the brief, will be treated as abandoned. Barfield Music House v. Harris, 20 Ga. App. 42 (2) (92 S. E. 402); Agee v. Rhodes, 20 Ga. App. 117 (92 S. E. 771).

7. The able counsel for the plaintiff in error insisted that the evidence did not authorize a conviction of assault with intent to .murder, but at most authorized only a verdict of shooting at another. We can not agree with this contention. Some of the evidence is set out in the statement of facts, and, without going into a discussion of the question, we think that it will readily be seen that the evidence amply authorized the verdict. The defendant, according to’ his own statement, being engaged at the time ‍‌‌​​​​‌‌​‌‌​‌‌‌‌​‌​‌​​‌​​​​​‌‌​​​‌​​​‌‌​​​‌‌‌‌​​‌​‌‌‌​​‌​‌‌‌‌​‌​‌​​‌‌‌​‌‌​​‌​‌‌​​‌​‌​‌​​‌​‌​​‌​‌‍in a violation of the law, and the offense being committed in the presence of the officers, it was not necessary that the officers have a warrant in order to make the arrest. The officers did not fire until they were fired upon, and then fired’ in the direction from which the pistol-shot came. The defendant, according to the testimony of Reid, fired twice with a shotgun, and these shots came, not from *263the direction in which the officers were firing, but from their left; so under no view of the evidence was the defendant justifiable, and the verdict of- assault with intent to murder was amply authorized by the evidence.

Judgment affirmed.

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