The defendants, tried jointly, appeal from their convictions of murder and their life sentences.
1. The verdict was authorized by the evidence as to both appellants.
The corpus delicti was established by eyewitness testimony that appellant Stone, with the aid of аppellant Redfield, shot the victim twice under circumstances of express and implied malice. The apparent motive for the shooting arose from the fact that Stone recently had been forceably evicted from his apartment by his landlord, the victim. The state’s expert witness, Dr. Tate, testified that the victim had died two weeks after the shooting, of pulmonary embolus secondary to wounds consistent with bullet wounds, in one of which a bullet was found. Dr. Tate also testified that there was almost no likelihood of death from this disease fоr a man of the victim’s age and physical condition. "Where one inflicts an unlawful injury, such injury is to be accounted as the efficient, proximate cause of the death, whenever it shall be made to appear, either that (1) the injury itself constituted the sole proximate cause of the death; or that (2) the injury directly and materially contributed to the happening of a subsequent accruing immediatе cause of the death; or that (3) the injury materially accelerated the death, although
*461
proximately occasioned by a pre-existing cause.”
Wilson v. State,
The appellants argue that the verdict is contrary to the evidence and against the weight of the evidence, because five alibi witnesses allegedly established the apрellants’ presence elsewhere than the scene of the crime at the time of its commission. The testimonies of these witnesses were inconsistent in material respects both with themselves and with each other. "In determining upon which side of a disputed issue the evidence preponderates, the credibility, and not the number of the witnesses introduced
pro
and
con,
is the proper test.”
Savannah, F. & W. R. Co. v. Wideman,
2. The trial court did not err in denying the defense motion for new trial based on the ground of newly-discovered evidence. The "new” evidenсe consisted of medical records of state’s witness Willie Gross showing that he had been confined at Battey State Hospital for tuberculosis, had been an outpatient at the "MCG” (Medical College of Georgia?) Clinic, and should be seen for a follow-up examination one month after discharge. Even assuming that this evidence was relevant and prejudicial, it was not newly-discovered, as it was pаrt of the defendant Redfield’s Exhibit 2, and was presumably examined by both the trial judge and the jury.
3. The trial judge did not err in allowing witness Willie Gross to testify without a prior examination of mental capacity. "The objection to competency, if known, shall be taken before the witness is examined at all.” Code § 38-1611. The trial judge does not have to conduct a preliminary examination of the witness until an objection is interposed.
Bryant v. State,
4. The prosecution, in an effort to show the admitted flight of defendant Stone follоwing his release on bond, elicited, perhaps inadvertently, testimony of Stone’s having been charged initially with aggravated assault with intent tо murder and criminal attempt armed robbery. Defense counsel moved for mistrial on the ground that Stone stood neither charged nor indicted for criminal attempt armed robbery. The trial judge gave curative instructions to the jury and denied the motion.
Stone was initially charged with having committed these two other crimes. The aggravated assault charge was changed to a murder charge after the victim diеd. Even assuming that the testimony of the armed robbery charge was error, it is highly probable that the error did not contribute to the judgment. The jury was сautioned by the judge not to consider this testimony. Under the circumstances, the denial of mistrial was not an abuse of discretion.
5. The appellants attacked, for the first time in their motion for new trial, the composition of the grand jury which indicted them.
"A challenge to the array of grand jurors is waived unless timely filed. As stated in
Sanders v. State,
The appellants contend that, nоtwithstanding their failure to timely challenge the array of the grand jury, a challenge to the array of the same grand jury was sustained by the Superior Court of Richmond County in an order in another criminal case on April 29, 1977, and that this court can take judicial notice of that order. The appellants were indicted in July of 1976, and were tried on March 30- 31,1977. Even assuming that this order (which is not shown to have been appealed or upheld) is correct, we do not see how it can provide these appellants any relief in this case for the primary reason that they have waived any objection to the composition of the grand jury, as we have previously stated.
6. Enumerated error 5 in appellant Stone’s appeal is as follows: "The court erroréd [sic] in denying the defense motion for additional pеremptory strikes when selecting the jury.” This enumeration is not argued, or supported by citation of authority in the brief, and there was no oral argument in this case; therefore, it is deemed to have been abandoned.
Andrew v. State,
Judgment affirmed.