*1 Grounds above (e) ground the considered. amplifications of jury motion, the alleged in the (d) (e) complain because, as and involved, of plaintiff lien 95 shares stock gave the the and petition, in because equitable pleadings the there are no assignment not the written whether or jury did not determine There is be canceled. stock should the said shares of effect finding jury the the to in contentions. The merit these until the plaintiff of stock retain the shares should finding the written as- judgment simply satisfied was signment should be canceled. 1 of the motion opinion,
3. For reasons stated
division
to
and
case should
set aside
arrest the
granted
error
to
and was
to refuse
do so.
Judgment
All the Justices concur.
reversed.
Ramsey
The State.
v.
robbery by
and
force
defendant was convicted
Justice. The
Mobley,
a motion for new trial
filed
sentenced
death. He
was
denied,
grounds.
grounds
special
motion was
general
and five
overruling
of his de-
excepts
to the
and
and he
murrer to the indictment.
unlawfully
indictment,
charged
“did . . .
the accused
which
1. The
fraudulently,
violently,
arms, wrongfully,
and with force and
consent,
Rhodes,
person
force,
his
of E.
without
take from the
C.
fifty-one
dollars,”
same,
. . .
hundred
with intent
to steal the
one
being
robbery,
sufficiently charged
sub
indictment
the offense
defining
stantially
language
§
offense.
26-2501
said
of Code
grand jury
“Every
shall be
deemed
or accusation
indictment
correct,
sufficiently
in the terms
the offense
technical and
which states
Code,
plainly
of the offense
language
that the nature
or so
jury.”
In
may easily
charged
Code
27-701.
be understood
(3) (163
292),
Lacey
State,
App.
was a case
intimidation,
robbery by
the court held:
“It was
force and
necessary
allege
‘how or in what manner
for the indictment
force,
employed
force and intimidation
or what constituted
defendant
”
language
alleged.’
in this
was
the act
indictment
sufficiently plain for
nature of the offense
the Code
Pippin
jury,
easily
and this is sufficient.
to be
understood
(53
482);
(4),
S. E. 2d
began
charge
jury, completing
charge
with this statement:
*2
solicitor-general
by
ruling
“The
for a
has, asked
the court as to
specific
case,
matter
and that is with reference to circumstantial
you
applicable
giving
evidence.
court is not
as
to this case the
rule of circumstantial evidence.” The defendant contends that
the
jury
effect of
all
this statement
to the
was to instruct
them that
distinguished
the
evidence introduced
the
was direct evidence as
evidence;
having
from circumstantial
and circumstantial
evidence
case,
upon
into
admitted
the
it was
in-
incumbent
the court to
jury
only
charge
struct the
consider
the direct evidence
else to
the law of circumstantial evidence.
charge
It
is
not error
fail to
the law of
circumstantial evidence
request,
the
of a
absence
there
is direct evidence in a case
(Jones
State,
(7),
18;
State,
v.
210 Ga.
78 S. E.
v.
94
2d Wise
209 Ga.
115(1),
703);
598;
State,
(2),
70 E. 2d
v.
S.
Green
evidence.
charge
excerpt
Special
2, 3,
from the
grounds
an
each contains
charge
assigns
of the court to
as error the failure
and each
charge
principle
of law.
correct
some other
connection therewith
charge
failure to
some
made
is not
erroneous
the court
grounds
principle
These
are
merit. Green
other
without
law.
(1) (102
State,
813);
Argued 12, 9, 1956 April March 1956 Decided Rehearing May 16, denied in Griffith, plaintiff Lavender & error. for Eugene Cook, Attorney-Gen- Carey Skelton, Solicitor-General, (William on eral, Rubye Goode, G. Carter Jackson, Hall, rehearing), motion contra. for REHEARING
ON MOTION FOR rehearing filed a motion Justice. The State has Mobley, question in this case. This court has divided ma motion, file such a right State whether the has right. Glus opinion-that have such jority being it does (58 Henderson 734, Ga. 740 trom v. (71 628). in Head, E. 2d Justice S. 238, in case, concurred dissenting opinion in the Glustrom ably Almand, and discussed Wyatt Justice Presiding Justice position that the State’s motion should support in reasons has In State a criminal case in be dismissed. judgment in favor of of error on a right sue out a writ no 422; Code 70-201. This Jones, 7 Ga. defendant. State § jurisdiction entertain also held that it without court petition at instance from State for certiorari decision of the in Appeals Court of a criminal case. State v. (165 B’Gos, 566). E. reasoning applicable S. right appeal of the State to in and a criminal case to file petition for certiorari court, thoroughly to this fully set out in cases, supra, the Glustrom B’Gos does not opinion our rehearing to a motion for on behalf in a State criminal case.
It is well judgments established that of this court are completely' during under its control they at which term are rendered until the remittitur of this court has been forwarded below; that, during court the time before the remit transmitted, may titur is alter, aside amend, or set judgments. right its “The keep of the court to under its own during control judgments the term the it, rendered until the remittitur has been transmitted to below, given practice allowing rise to rehearing motions although be filed, rehearing by any case is not referred any way to in either the constitution or statutes of Cooper the State.” Brewing Portner Co., only rehearings references matter the law of this State contained (Code, Supp., Rule Ann. 24-4544), which, while providing for motions for rehear § ings, governing states the rules manner filing such mo tions, (Ann.) Code 24-3801, which deals with terms sessions Supreme Court, and contains the following provision: further, “Provided other than a rehearing, motion for shall rendered during days fifteen last term.” in Sea This board Ry. Air-Line Jones, 320) Ga. 907 *4 being held: expressly “There authorizing parties no law to a case to for a rehearing, application whether such will entertained, be and, if entertained, disposition what shall be it, questions made entirely addressed sound discre tion And of the court.” in the same case it was held in headnote Supreme as follows: “The during Court will, the term at a judgment rendered, which is and before the remittitur been forwarded clerk court, the trial dissatisfied with judgment, its own motion order rehearing a case.” authorizing expressly being there is no law Thus, it clear that rehearing will application rehearing, and whether an that within sound disposition, are matters and its entertained, be this court question then is whether court, discretion of the to file the State permit discretion should in the exercise of its cases. rehearings motions for a new granting above, judgment of this pointed out As breast within the criminal case remains trial a defendant in a the clerk forwarded to of the court until the remittitur has right has the during time court, of the trial that during defendant, judgment. The alter, amend, or vacate its rights statutory or interim, acquired constitutional question favor. by reason of the rendered of the constitutional jeopardy in violation putting him in put jeopardy provision provides person “No shall which offense, save for the same life, or more than once liberty, conviction, or in after his, her motion for new trial or own involved. Since 2-108), (Code, Ann., is case of mistrial” motion, may on its own goes out, the remittitur court, before amend, error, alter, committed it has where determines duty of the court since it vacate its attention calling to our so, objection the State’s do we see no the State rehearing or mistakes by any errors motion for committed. believes this court has by is entertained rehearing filed the State motion the motion is of the same but consideration court,
denied. except Almand,
All Justices P. concur, Wyatt, J., Head and JJ., dissent. Justice, dissenting. ruling by I dissent from the
Head, majority entertaining considering rehearing the motion for subject filed the State. Errors criminal cases are not Jones, revision at the of the State. instance State v. rehearing at in this instance theory
authorized under the granting the defendant a new remains within the breast trial of the court until remittitur has been sent to the trial court. many held It has been times this court that decision *5 breast judge trial civil is within cases in which such may the term vacated, aside, set or revised at be a motion judgment If, after conviction is rendered. a granting the defendant trial, judgment is entered new judgment properly superior judge, new can that trial rendered, at the instance be at which at the term it is vacated judge at the term so, why may a trial same of the State? If sustaining an instance of the reverse his at the could In neither instance quash oral an indictment? motion to movant, since properly said defendant was be previously would judgment favorable his contentions have been nor the entered. Neither Constitution statutes any any reconsideration, or appeal, State review authorize any of the State. case in the instance court at wherein a of this court writer knows of no instance capital case ever been granting a defendant a new trial on its contrary judgment by the court vacated and a entered granting trial to judgment by own new motion. very carefully con- capital in a the defendant sidered. ruling Jones, supra, mo-
Under State of this considered in tions on behalf the State should final, instance where a the defendant favorable to by operation law. The motion would become final See rehearing filed should been dismissed. the State Glustrom v. 740 and dissenting opinions 734, say 238, Henderson I am authorized to Presiding Wyatt Mr. Almand concur Justice Mr. Justice in this dissent. MUTUAL LIABILITY
19283. WOODUM v. AMERICAN CO. et al. INSURANCE Argued April March 1956 Decided 9, 12, Rehearing May denied