McCauley v. State

Court of Appeals of Georgia

McCauley v. State

71 S.E.2d 664, 86 Ga. App. 509, 1952 Ga. App. LEXIS 991

CourtCourt of Appeals of Georgia

DecidedJuly 15, 1952

Docket34135

StatusPublished

This text of 71 S.E.2d 664 (McCauley 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.

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McCauley v. State, 71 S.E.2d 664, 86 Ga. App. 509, 1952 Ga. App. LEXIS 991 (Ga. Ct. App. 1952).

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Opinion

Carlisle, J.

1. A special ground of a motion for a new trial is defective and presents nothing for consideration by this court, where, in assigning error upon an alleged expression of opinion by the trial court prejudicial to the defendant in a criminal case, it is not made to appear in such special ground that the defendant or his counsel interposed any objection or made any motion for a mistrial because of, and at [510]*510the time of, the alleged expression of opinion by the court. Pledger v. State, 86 Ga. App. 475, and citations. Special ground 2 of the motion for a new trial presents no ground for the grant of a new trial.

Decided July 15, 1952. Bobby Lee Cook, for plaintiff in error. Warren Akin, Solicitor-General, contra.

2. Where, upon the trial of a criminal case, counsel for the defendant, in cross-examining the prosecuting witness, asks the witness if he had not employed another lawyer (in addition to the solicitor-general) to prosecute the case against the defendant, in order to illustrate the bad feeling existing between such witness and the defendant, it is not error for the trial court to sustain an objection to such question and proposed answer .where it is not made to appear in the special ground of the motion for a new trial, in which the court’s action is assigned as error, or elsewhere in the record (there being no brief of evidence attached to the petition) that a proper foundation had been laid for asking the question. Until the witness had denied that he bore the defendant ill will, there was no occasion to go into particular transactions tending to show that the denial was untrue, even if we assume that the prosecutor’s hiring additional counsel to assist the solicitor-general would in fact illustrate the prosecutor’s ill will. Walker v. State, 74 Ga. App. 48 (1), 50 (39 S. E. 2d, 75), and citations.

3. The general grounds of the motion for a new trial, having been expressly abandoned by counsel for the defendant, are not considered.

Judgment affirmed.

Gardner, P.J., and Felton, J., concur. Felton, J., was designated to preside in place of Townsend, J., disqualified.

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Carlisle, J.

1. A special ground of a motion for a new trial is defective and presents nothing for consideration by this court, where, in assigning error upon an alleged expression of opinion by the trial court prejudicial to the defendant in a criminal case, it is not made to appear in such special ground that the defendant or his counsel interposed any objection or made any motion for a mistrial because of, and at [510]*510the time of, the alleged expression of opinion by the court. Pledger v. State, 86 Ga. App. 475, and citations. Special ground 2 of the motion for a new trial presents no ground for the grant of a new trial.

Decided July 15, 1952. Bobby Lee Cook, for plaintiff in error. Warren Akin, Solicitor-General, contra.

2. Where, upon the trial of a criminal case, counsel for the defendant, in cross-examining the prosecuting witness, asks the witness if he had not employed another lawyer (in addition to the solicitor-general) to prosecute the case against the defendant, in order to illustrate the bad feeling existing between such witness and the defendant, it is not error for the trial court to sustain an objection to such question and proposed answer .where it is not made to appear in the special ground of the motion for a new trial, in which the court’s action is assigned as error, or elsewhere in the record (there being no brief of evidence attached to the petition) that a proper foundation had been laid for asking the question. Until the witness had denied that he bore the defendant ill will, there was no occasion to go into particular transactions tending to show that the denial was untrue, even if we assume that the prosecutor’s hiring additional counsel to assist the solicitor-general would in fact illustrate the prosecutor’s ill will. Walker v. State, 74 Ga. App. 48 (1), 50 (39 S. E. 2d, 75), and citations.

3. The general grounds of the motion for a new trial, having been expressly abandoned by counsel for the defendant, are not considered.

Judgment affirmed.

Gardner, P.J., and Felton, J., concur. Felton, J., was designated to preside in place of Townsend, J., disqualified.

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71 S.E.2d 664, 86 Ga. App. 509, 1952 Ga. App. LEXIS 991, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccauley-v-state-gactapp-1952.

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