Carter v. State

83 S.E. 153, 15 Ga. App. 343, 1914 Ga. App. LEXIS 100

Opinion

W.ade, J.

1. Evidence as to various'acts of violence committed by the accused against other persons or things, at the identical time he was charged with committing the felonious assault for which he was prosecuted, was admissible as part of the res gestse, to throw light on his state of mind and to illustrate his intention at the time of the assault.

2. An assignment of error based on the failure of the judge to charge the jury as to a theory of defense raised altogether by the defendant’s statement to the court and jury is without merit, when there was no written request for a more specific or fuller charge than that given. , Carroll v. State, 99 Ga. 36 (25 S. E. 680); Hardin v. State, 107 Ga. 718 (3), 719 (33 S. E. 700) ; Robinson v. State, 114 Ga. 56 (4), 57 (39 S. E. 862) ; Smith v. State, 117 Ga. 259 (43 S. E. 703); Walker v. State, 117 Ga. 323 (43 S. E. 737) ; Collins v. State, 121 Ga. 173 (48 S. E. 903) ; Hawkins v. State, 141 Ga. 212 (80 S. E. 711) ; Strickland v. State, 11 Ga. App. 427 (75 S. E. 446) ; Thigpen v. State, 11 Ga. App. 846 (76 S. E. 596); Jackson v. State, 14 Ga. App. 608 (81 S. E. 905).

3. A charge that the jury may believe the statement of the accused in preference to the sworn testimony in the ease, “provided they believe it to be true,” is not subject to objection. McCullough v. State, 10 Ga. App. 403, 405 (73 S. E. 546) ; Brown v. State, 14 Ga. App. 508 (81 S. E. 590) ; Haar v. State, 14 Ga. App. 548, 550 (2) (81 S. E. 811).

4. Some of the alleged newly discovered evidence is plainly incompetent, the remainder is largely impeaching and cumulative in its character, and all of it together would not probably produce a different result on another trial; therefore there was no abuse of discretion on the part of the trial judge in refusing to grant the motion for a new trial on this ground.

5. Assignments of error not insisted upon in this court will be1 treated as abandoned. There is no substantial merit in any of the assignments of error, and the evidence for the State amply supports the verdict of guilty. ' Judgment affirmed.

Roan, J., absent.

Indictment for assault with intent to murder; from Chatham superior court—Judge Charlton. May 18, 1914.

Shelby Myriclc, for plaintiff in error. ' Walter 0. Hartridge, solicitor-general, contra.