Wheeless v. State

117 S.E. 101, 30 Ga. App. 131, 1923 Ga. App. LEXIS 308

• Court: Court of Appeals of Georgia
• Decided: April 10, 1923
• Docket: 14267
• Status: Published

Opinion

Broyles, C. J.

1. Under the act of the General Assembly approved August 21, 1911 (Ga. L. 1911, sec. 3, p. 150), where the trial court has finally passed on the merits of a motion for a new trial and no question as to the sufficiency of the judge’s approval of the grounds of the motion has been raised in the trial court, such question cannot be entertained by this court. Lott v. Banks, 21 Ga. App. 246 (1) (94 S. E. 322). Under this ruling and the facts of the instant case, this court will consider all the grounds, both general and special, of the motion for a new trial.

2. The ground of the motion for a new trial assigning error upon the remark of the solicitor-general, made in his concluding argument, alleged to be “ improper and inflammatory and prejudicial to the rights of the defendant,” cannot be considered, for the reason that it fails to allege that the remark or conclusion of the solicitor-general was not authorized by any evidence in the case. Blount v. State, 18 Ga. App. 204 (2) (89 S. E. 78). In the absence of such an allegation, the solicitor-general’s remark will be regarded as a deduction from the evidence. Floyd v. State, 143 Ga. 286 (5), 289 (84 S. E. 971), and authorities cited.

3. The corpus delicti was sufficiently proved.

4. While the evidence amply authorized the acquittal of the accused, there was some evidence that supported his conviction, and, the finding of the jury having been approved by the trial judge, this court is without authority to interfere.

Judgment affirmed.

Luke and Bloodworth, JJ., eoneur.