Adams v. State

128 S.E. 924, 34 Ga. App. 144, 1925 Ga. App. LEXIS 85

• Court: Court of Appeals of Georgia
• Decided: June 9, 1925
• Docket: 16385
• Status: Published

Opinions

Bloodworth, J.

1. While the right to a thorough and sifting cross-examination should not be abridged, yet where a person is on trial and a witness for the State uses a private memorandum book to refresh his memory, no error harmful to the accused is pointed out in the ground of the motion for a new. trial which alleges that the court “refused to allow counsel for defendant to see it (the book) or cross-examine the witness about the paper.” See, in this connection, Park’s Penal Code, § 1046; Schall v. Eisner, 58 Ga. 191 (2) ; Smith v. State, 17 Ga. App. 298 (1) (86 S. E. 660).

2. “A ground of a motion for a new trial, complaining of the court’s ruling upon the admissibility of specified testimony, which does not state the name of the witness whose testimony was admitted or excluded, is too incomplete to be considered. Hunter v. State, 148 Ga. 566 (1) (97 S. E. 523) ; Adams v. State, 22 Ga. App. 252 (1) (95 S. E. 877), and citations.” Palmer v. State, 28 Ga. App. 567 (1) (112 S. E. 154). “Grounds of a motion for a new trial should be complete within themselves; and when a particular ground is under consideration, reference to other grounds should not be required in order to understand the assignments of error. Bowen v. Smith-Hall Grocery Co., 146 Ga. 157 (4) (91 S. E. 32); Powell v. State, 25 Ga. App. 329 (3) (103 S. E. 174).” Moore v. State, 27 Ga. App. 781 (110 S. E. 55). Under the rulings in the foregoing eases, even if special ground 3 of the motion could be considered by this court, special ground 2 could not. However, neither of these grounds shows error. See, in this connection, H 68 S. E. 504).

Decided June 9, 1925. Rehearing denied July 14, 1925. Thomas J. Lewis, for plaintiff in error. John A. BoyTcin, solicitor-general, E. A. Stephens, Ralph H. Pharr, contra.

3. Section 1010 of the Penal Code of 1910 is as follows: “T<? warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of ihe accused.” In charging this section the trial judge inadvertently used the word “should” where the statute has “must,” in the last clause of the section. This slip of the tongue was not an error likely to mislead' the jury and cause them to return a verdict different from what they would have done had the judge used the exact word of the statute, and the error is not of such materiality as to require the grant of a new trial. See Griffin v. State, 24 Ga. App. 656 (1) (101 S. E. 767) ; Reynolds v. State, 23 Ga. App. 369 (98 S. E. 246); Owens v. State, 139 Ga. 92 (1) (76 S. E. 860).

4. When considered in connection with the remainder of the charge, the instructions of which complaint is made in ground 5 of the amendment to the motion for a new trial do not require a reversal of the judgment.

5. Questions of fact are peculiarly for the jury, and where there is any evidence, as there is in this case, that supports a verdict which has the approval of the trial judge, this court can not interfere.

Judgment affirmed.

Broyles, O. J., and Luke, J., eoneur.