Gardner v. State

130 S.E. 215, 34 Ga. App. 512, 1925 Ga. App. LEXIS 362

Opinion

Broyles, 0. J.

1. Where, by oversight, inadvertence, or otherwise, the defendant is put on trial upon an indictment which charges that he assaulted one Oharlie Johnson, with the intent to murder him, and during the trial it develops that the person so assaulted was Robert Johnson, and where, on motion of counsel for the defendant, a verdict is directed for the defendant, such acquittal can not be pleaded in defense to another indictment, charging the same defendant with assaulting with intent to kill one Robert Johnson. This is true although it was the intention in the first instance to indiet and prosecute the defendant for assaulting Robert Johnson, and both indictments related to the same transaction. Moody v. State, 1 Ga. App. 772 (1), 774 (58 S. E. 262); Gully v. State, 116 Ga. 527 (42 S. E. 790), and citations.

Decided November 10, 1925. Charles F. Wells, John F. Echols, for plaintiff in error. John A. Boylcin, solicitor-general, Ralph Ii. Pharr, contra.

2. The special grounds of the motion for a new trial, complaining of the admission of certain evidence, show no reversible error.

3. The general grounds of the motion for a new trial are not argued or referred to in the brief of counsel for the plaintiff in error, and there- . fore are treated as abandoned.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.