Carey v. State

144 S.E. 9, 38 Ga. App. 356, 1928 Ga. App. LEXIS 227

• Court: Court of Appeals of Georgia
• Decided: July 10, 1928
• Docket: 19007
• Status: Published

Opinion

Luke, J.

Error was assigned on the following instruction to the jury: “The defendant in this case has made a statement, and, under the law, he has the right to make to the court and jury just such statement as he sees proper to make in his defense; and while this is not required to be under oath, yet it is left entirely with the jury as to what credit you will give the defendant’s state • ment. You have the right to accept it, or you have the right to reject it, or you have the right to'believe it in preference to the sworn testimony in the case, if you see proper to give it that degree of credit.” This was excepted to because of failure to charge that the jury could believe the statement in part and reject part.

Upon conflicting evidence the jury had the right to convict the defendant. The crime alleged was positively sworn to by a State’s witness. The single special exception of the motion for a new trial, which assigns error upon the court’s charge as to the defendant’s statement, is without merit. The charge of the court as a whole was most fair. The defendant has been legally convicted, and his motion for a new trial was properly overruled.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.