Lively v. State

Court of Appeals of Georgia

Lively v. State

118 S.E. 476, 30 Ga. App. 633, 1923 Ga. App. LEXIS 582

CourtCourt of Appeals of Georgia

DecidedJuly 11, 1923

Docket14597

StatusPublished

This text of 118 S.E. 476 (Lively v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lively v. State, 118 S.E. 476, 30 Ga. App. 633, 1923 Ga. App. LEXIS 582 (Ga. Ct. App. 1923).

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Opinion

Bloodworth, J.

1. “ Errors alleged to have been committed upon the trial of a special plea of misnomer in a criminal case do not constitute and cannot be considered as proper grounds of-a motion for a new trial in the main case; and this is so although the same jurors passed upon the special plea and upon the case in chief, it appearing that the two investigations were conducted independently of each other, that the jurors were separately sworn in each, and that there was no direct motion to set aside the finding on the special plea. Kneeland v. State, 62 Ga. 395; Boisclair v. State, 92 Ga. 453.” McDow v. State, 113 Ga. 699 (39 S. E. 295). The principle announced in, the foregoing case disposes of the first special ground of the motion for a new trial.

2. There is no merit in the second special ground of the motion for a new trial, when it is considered in connection with the pleadings, the evidence, and the qualifying note of the trial judge.

3. There is no error harmful to the defendant m the excerpts from the charge of which complaint is made in the 3d and 4th grounds of the amendment to the motion for a new trial, when they are considered in the light of the other portions of the charge.

4. There is sufficient evidence to support the finding of the jury, which has the approval of the trial judge, and the judgment is

Affirmed.

Broyles, G. J., and Luke, J., concur.

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Bloodworth, J.

1. “ Errors alleged to have been committed upon the trial of a special plea of misnomer in a criminal case do not constitute and cannot be considered as proper grounds of-a motion for a new trial in the main case; and this is so although the same jurors passed upon the special plea and upon the case in chief, it appearing that the two investigations were conducted independently of each other, that the jurors were separately sworn in each, and that there was no direct motion to set aside the finding on the special plea. Kneeland v. State, 62 Ga. 395; Boisclair v. State, 92 Ga. 453.” McDow v. State, 113 Ga. 699 (39 S. E. 295). The principle announced in, the foregoing case disposes of the first special ground of the motion for a new trial.

2. There is no merit in the second special ground of the motion for a new trial, when it is considered in connection with the pleadings, the evidence, and the qualifying note of the trial judge.

3. There is no error harmful to the defendant m the excerpts from the charge of which complaint is made in the 3d and 4th grounds of the amendment to the motion for a new trial, when they are considered in the light of the other portions of the charge.

4. There is sufficient evidence to support the finding of the jury, which has the approval of the trial judge, and the judgment is

Affirmed.

Broyles, G. J., and Luke, J., concur.

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118 S.E. 476, 30 Ga. App. 633, 1923 Ga. App. LEXIS 582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lively-v-state-gactapp-1923.

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