Bennett v. State

176 S.E. 148, 49 Ga. App. 804, 1934 Ga. App. LEXIS 564

• Court: Court of Appeals of Georgia
• Decided: July 23, 1934
• Docket: 23758
• Status: Published

Opinions

Broyles, C. J.

1. Under repeated rulings of the Supreme Court and of this court, a special ground of a motion for a new trial must be complete and understandable within itself; and where, in order to understand the assignment of error in such a ground and to ascertain whether the alleged error, if error, was prejudicial to the defendant’s cause, it is necessary for the reviewing court to refer to some other portion of the record, the ground is too incomplete to be considered. In tbe instant case the first special ground of the motion for a new trial is as follows: “Because the court [erred] in admitting in evidence, over timely objection of defendant’s counsel, the following material testimony of W. L. Johnson, a witness sworn in behalf of the State: ‘I hired George Williams and J. M. Williams, they were familiar with cows, the cattle in there, and they taken mules and drove everything they said they found in that country.’ Defendant objected to the admission of said evidence upon the ground that the same was hearsay, but the court admitted said evidence, although very material and most harmful to defendant, in that said evidence sought to prove by hearsay testimony that no such cattle were in existence.” This was a criminal case, but this court can not discover from the ground itself for what offense the defendant was on trial. To so determine, a reference to the accusation or to some other part of the record would be necessary. What materiality to the case has the evidence (complained of in the ground) as to “cows,” “the cattle in there,” and the driving by George and J. M. Williams of “everything they said they found in that country?” The ground fails to show the materiality of the evidence complained of and does not disclose how or why the admission of the evidence was harmful to the defendant. Furthermore, even if the ground was complete enough to be considered, all the evidence set forth in the ground was objected to as being hearsay evidence, and the following part, to wit, “I hired George Williams and J. M. Williams, they were familiar with cows, the cattle in there,” was clearly not hearsay, and the trial judge properly overruled the ground. American Ins. Co. v. Bailey, 6 Ga. App. 424 (4) (65 S. E. 160); Luke v. State, 26 Ga. App. 175 (106 S. E. 199).

2. The second special ground of the motion is also without merit. Where evidence is objected to en bloc, and some of it is clearly admissible, its admission is not error.

3. The record shows that the court charged the jury on the law of circumstantial evidence, and the ground complaining of the refusal so to charge is without merit.

4. It is not error, in the absence of request, or even with request, to fail to charge that “In the commission of a crime or misdemeanor there must be a union or joint act and intention or criminal negligence,” where the court fully charges on the essential elements of the crime with which'the defendant is charged.

5. The verdict was authorized by the evidence; and the refusal to grant a new trial was not error for any reason assigned.

Judgment affirmed.

MacIntyre, J., concurs. Guerry, J., dissents.