Murray v. State

118 S.E. 62, 30 Ga. App. 373, 1923 Ga. App. LEXIS 476

• Court: Court of Appeals of Georgia
• Decided: June 12, 1923
• Docket: 14563
• Status: Published

Opinion

Broyles, C. J.

1. “ A prosecutor is one who instigates a prosecution by making an affidavit charging a named person with the commission of a penal offense, on which a warrant is issued or an indictment or accusation is based. 6 Words & Phrases Judicially Defined, 5739.” Eady v. State, 10 Ga. App. 818 (1) (74 S. E. 303). Under this ruling and the facts of the instant case the judge, sitting as the trior of the facts, was authorized to find that the sheriff of the city court of Black-shear was not the prosecutor in the case, and the overruling of the challenge to the array of the jurors put upon the defendant was not error for any reason assigned. McKenzie v. State, 28 Ga. App. 33 (7), 36 (7) (110 S. 15. 248); Hewitt v. State, 27 Ga. App. 676 (3) (109 S. E. 679).

Decided June 12, 1923. James B. Thomas & Son, for plaintiff in error. S. Thomas Memory, solicitor, contra.

(a.) Nor was it error for the court to refuse the defendant’s request to purge the jury of the relatives of the sheriff; and, therefore, grounds 4 and 7 of the motion for a new trial are without merit.

2. The remaining grounds of the amendment to the motion for a new trial cannot be considered by this court, as they are not unqualifiedly approved by the trial jiidge. On the contrary, the judge appends a note in which he sets forth material qualifications of the grounds as presented by the movant. Haygood v. Clark Co., 27 Ga. App. 101 (1) (107 S. E. 379), and citations; Gibson v. State, 27 Ga. App. 175 (1) (107 S. E. 599).

3. The verdict was authorized by the evidence, and the court did not err in refusing the grant of a new trial.

Judgment affi/rmed.

Luke and Bloodworth, •/•/., concur.