Wilkerson v. State

73 Ga. 799 | Ga. | 1884

Jackson, Chief Justice.

[Wilkerson was convicted of burglary. The facts are sufficiently set out in the first head-note. He moved for a new trial, on the following grounds :

(1), (2.) Because the verdict was contrary to law and evidence, and without evidence to support it.

(3.) Because the court charged as follows : “If two or more persons agree and go together to a house for the purpose of committing a burglary or theft, it is not necessary that they should all enter the house, for the purpose of making them all guilty. If one aids in any way, stands by and assists in opening a bouse, stands by and receives the goods as they are banded out, be is just as guilty as the party who actually entered the house.” •

(4.) Because the verdict was contrary to the charge.

(5.) Because the court refused to require the solicitor general, in questioning Mat. Holden, a witness for the defendant, in reference to his statement made upon his own trial, to read.to witness what his statement was, as shown in the record, but allowed the solicitor general to propound questions to the witness in his own (the solicitor’s) language.

(6.) Because the court allowed Holden, while a witness, to testify that Jim McGarrah told him, on the night before the burglary was committed, that he (McGarrah) intended to break open the store. (McGarrah, Holden and defendant were the three men who were on the porch together shortly before the burglary, and who were caught together on the night after it was committed, in possession of some of the property. Holden was a witness for the defendant, and as such, testified that he and McGarrah concocted and perpetrated the crime, and that this was done after defendant left. On cross-examination, he denied that McGarrah had told them on the previous night that he was going to break into the store, or that he (the witness) had so testified on the preliminary examination of defendant. The testimony taken on the preliminary trial was introduced over objection. It contained the statement that “ Jim told us, the night before, he intended to break open the store.”)

(7.) Because the court allowed the solicitor general, after the testimony had closed, to re-open it, and introduce the statement made by the witness, Holden, on his own trial, for the purpose of impeaching him. — The objection was that the testimony had been closed.

(8.) Because the court refused to allow the witness, Jim Hanner, to state what John Wilkerson said in explanation of his possession of the snuff found on his person.

The motion was overruled, and defendant excepted.]