Embry v. State

75 S.E. 604, 138 Ga. 464, 1912 Ga. LEXIS 582

Opinion

Lumpkin, J.

1. That a juror’s name is not on the jury list or in the jury box is not cause for a new trial, when the point is raised for the first time after verdict. Being an objection propter defectum, it should be discovered and urged before verdict. Somers v. State, 116 Ga. 535 (42 S. E. 779); Jordan v. State, 119 Ga. 443 (46 S. E. 679).

2. Where, after verdict, in a motion for a new trial the impartiality of two of the jurors was attacked, and there was a showing and a counter-showing on the subject, and the presiding judge passed on the conflicting evidence, his finding will not be reversed, unless he has abused his discretion. Jefferson v. State, 137 Ga. 382 (73 S. E. 499).

3. If the charge on the subject of mutual combat, of which complaint was made, was not altogether as clear and exact as it might have been, under the evidence it does not require a reversal on the ground that it was “too vague and uncertain, and because the court failed to give the jury the law, if any, which distinguishes between mutual combat— that is to say that the court failed to charge the jury when death results from a mutual combat between two parties when it is manslaughter and when it is murder.” Cargile v. State, 137 Ga. 775 (74 S. E. 621); Freeman v. State, 70 Ga. 376 (3).

4. The verdict was supported by the evidence, and there was no error in overruling the motion for a new trial.

Judgment affirmed.

All the Justiees concur.