Cumby v. State

158 S.E. 773, 43 Ga. App. 328, 1931 Ga. App. LEXIS 335

• Court: Court of Appeals of Georgia
• Decided: May 13, 1931
• Docket: 21337
• Status: Published

Opinion

Blood worth, J.

1. The first special ground of the motion for a new trial is not argued in the brief of counsel for plaintiff in error, and will be treated as abandoned, -as there is no general insistence on all the grounds of the motion. Mills v. State, 35 Ga. App. 471 (4) (134 S. E. 141). Moreover, this ground is incomplete. It does not appear how the evidence set out therein was material or how its admission could have been harmful to the defendant. Herndon v. State, 38 Ga. App. 117 (6), 119 (142 S. E. 695), and cit.; Wilson v. McConnell, 36 Ga. App. 767 (1a) (138 S. E. 244).

2. Eor no reason assigned did the court err in charging on flight. The evidence authorized such a charge. Calloway v. State, 151 Ga. 342 (2), 345 (106 S. E. 577) ; Wilkes v. State, 16 Ga. App. 185 (2) (84 S. E. 721). Nor is there error, for any reason assigned, in the excerpt from the charge embraced in this ground of the motion. Fountain v. State, 23 Ga. App. 123 (10) (98 S. E. 183) ; Lester v. State, 155 Ga. 882 (5), 883 (118 S. E. 674).

3. The jury, who are the final arbiters of the facts, decided the issue in this ease in favor of the State. In passing on the facts on a motion for a new trial the judge of the trial court has some discretion, and where he has exercised that discretion this court is powerless to interfere. Albca v. State, 40 Ga. App. 503 (2) (150 S. E. 434) ; George v. State, 37 Ga. App. 513 (140 S. E. 903); Cohran v. State, 38 Ga. App. 129 (142 S. E. 703). The court properly overruled the motion for a new trial.

Decided May 13, 1931. Beall & Beall, for plaintiff in error. Emmett Smith, solicitor, contra.

Judgment affirmed.

Broyles, G. J., and Luke, J., eoneur.