14 Ga. App. 475 | Ga. Ct. App. | 1914
Sam Wilkerson was convicted on an accusation charging him with selling whisky. He excepts to the refusal of a new trial. In the 4th ground of his motion for a new trial (which is the first ground following the usual general grounds) error is assigned because the verdict was received during the absence of himself and of his counsel, no waiver being entered by him or his counsel of his or their right to be present when the verdict was received, or of the poll of the jury. In this ground it is stated that the defendant was under bond. In the 5th and 6th grounds error is assigned because the court failed to charge the jury upon evidence of good character that had been submitted to them for the accused. The 7th ground was not approved by the trial court, and therefore will not be considered. The 8th ground alleges error because the court refused, on request, to allow the defendant to withdraw his plea of not guilty. The 9th ground alleges error because the court refused to allow the defendant to file a plea in abatement, alleging that the accusation on which he was being tried had never been sworn to. In this ground it is stated that the plea in abatement was offered after the defendant had “entered his plea to the merits or general issue or the jury had been sworn, or the jury had been stricken.” The 10th ground alleges that after the jury had been stricken and sworn,' and after Herman Steed, a material witness for the State, had testified, it was discovered that one of the jurors stricken by the defendant was serving on the jury trying the case; that the defendant’s counsel moved that a mistrial be declared for this reason, and the motion was overruled; and that the court erred in overruling the motion. When the motion to declare a mistrial was overruled the court withdrew the case from the jury, and over the objection of the accused required him to be tried by a jury selected from the original list of twenty-four from which the first jury had been selected. This also is assigned as error.
There is no merit in the general grounds of the motion for a new trial; for the evidence authorized the jury to render a verdict finding the defendant guilty.