Jordan v. State

107 S.E. 781, 27 Ga. App. 183, 1921 Ga. App. LEXIS 767

• Court: Court of Appeals of Georgia
• Decided: June 14, 1921
• Docket: 12374
• Status: Published

Opinion

Bloodworth, J.

1. The instructions complained of (which included in substance section 73 of the Penal Code of 1910), even if erroneous, were made while the judge was charging the jury on the law of murder, and did not injuriously affect the accused, since the verdict was voluntary manslaughter. Thompson v. State, 24 Ga. App. 144 (2) (99 S. E. 891), and cases cited.

2. The second ground of the amendment to the motion for a new trial alleges that “ counsel for movant considers that the following material evidence should have gone to the jury in determining the guilt or innocence of the prisoner” (then follows the evidence referred to), but it is not alleged that this evidence was offered by the movant or that it was illegally withheld from the jury against his demand. Civil Code (1910), § 6083; Wight v. Schmidt, 111 Ga. 858 (1) (36 S. E. 623); Ponder v. Walker, 107 Ga. 753 (2) (33 S. E. 690). In addition to the above, “the general rule is, that in order for the exclusion of oral evidence to be considered as a ground for a new trial, it mast' appear that a pertinent question was asked, that the court refused to allow the answer, and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material and would have benefited the complaining party. Griffin v. Henderson, 117 Ga. 382, and cit.” Allen v. Kessler, 120 Ga. 319 (1) (47 S. E. 900). See Kimbrel v. State, 24 Ga. App. 696 (101 S. E. 920). In view of the above rulings, the second ground of the amendment to the motion for a new trial does not properly present any question for determination by this court.

3. There was ample evidence to support the verdict.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.