Horton v. State

57 S.E. 224, 128 Ga. 26, 1907 Ga. LEXIS 9

Opinion

Beck, J.

1. It appearing that after the trial judge had excluded evidence ' offered by counsel for the defendant to show that the deceased habitually carried a weapon of a given character, he announced that evidence of the character stated would be admitted, but counsel did not offer the testimony again, the ruling as originally made, even if erroneous, affords no ground for a new trial. If error was committed, it was cured; it not appearing that the witness whose testimony had been excluded was no longer in, attendance upon the court.

2. A new trial will not be granted because of the exclusion of evidence apparently irrelevant and immaterial at the time it was offered, but which the testimony of á witness subsequently put upon the stand showed to be relevant and material. 'When the materiality of the rejected evidence was made to appear by the testimony coming in subsequently, it should have been offered again. Had it then been offered, the court would, it is to be presumed, have admitted it.

3. Grounds of a motion for a new trial not urged in the brief of counsel for plaintiff will be treated as abandoned.

4. There was sufficient evidence to support the verdict, and the judgment of the court below refusing a new trial is

Affirmed.

Fish, G. J., absent. The other Justices concur.

Indictment for murder. Before Judge Beagan. Spalding su-. perior court. February 6, 1907.

J. D. Boyd and T. E. Patterson, for plaintiff in error. John G. Hart, attorney-general, O. II. B. Bloodworth, solicitor-general, and W. P. Bloodworth, contra.