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ALMAND, Justice.
Murder. Before Judge Andrews. Fulton Superior Court. February 4, 1952.
1. The court did not err in refusing to declare a mistrial, as complained of in special ground 1 of the motion for a new trial, because a witness for the State on direct examination stated that the defendant on trial and another person had been imprisoned, which answer was not in response to any question, where the statement was promptly excluded and the jury were instructed to disregard it. Worthy v. State, 184 Ga. 402 (3) (191 S. E. 457); Stanford v. State, 201 Ga. 173 (2) (38 S. E. 2d, 823); Brown v. State, 203 Ga. 218 (3) (46 S. E. 2d, 160).
2. It is not error to refuse to permit a nonexpert witness to answer a hypothetical question on cross-examination, where the opinion or conclusion called for is dependent upon facts which he has not testified to. Moon v. State, 68 Ga. 687 (4); Alabama Great Southern R. Co. v. Brown, 140 Ga. 792 (3) (79 S. E. 1113, Ann. Cas., 1915A, 1159); Cooper v. State, 197 Ga. 611 (5) (30 S. E. 2d, 177). Special ground 2, which complains that the court erred in not permitting a State's witness, on cross-examination, to answer a hypothetical question based upon facts not testified to by the witness, is without merit.
3. Where no motion for a mistrial or objection is made at the time to a statement made by the trial judge during the examination of a witness, the verdict will not be set aside on motion for a new trial alleging that the statement of the judge was improper and prejudicial. Simmons v. State, 181 Ga. 761 (3) (184 S. E. 291). Special ground 3 assigns error on a statement of the court in answer to an inquiry by a State's witness as to whether he had to answer a question propounded, to wit, "Unless it is objected to I am going to let the answer in." Whether the court's remark was harmful and prejudicial to the defendant cannot be considered.
4. It was not error to admit in evidence the end of a shotgun barrel, as complained of in special ground 4, where there was evidence before the jury that the gun barrel, before it was sawed off by one of the alleged conspirators, had been a part of the shotgun that was used in the attempted robbery which resulted in the death of the deceased.
5. An exception to an entire charge is not good unless the whole charge is subject to such exception. Pyle v. State, 187 Ga. 156 (7) (200 S. E. 667): Collins v. State, 199 Ga. 830, 833 (3), 834 (6) (35 S. E. 2d, 452). Special ground 5 complains that the court erred in charging the jury, by elaboration of the law upon a single phase of the case to such an extent as to give it undue prominence. The instruction complained of was practically the entire charge of the court, covering 10 pages, dealing with burden of proof, reasonable doubt, credibility of witnesses, law of murder, conspiracy, flight, etc. The exception being to such charge as a whole, and the charge as a whole not being subject to such exception, the same is without merit. However, we have carefully examined the various charges complained of as a whole, and find that the court fully and correctly charged the law applicable to the issues in the case.
6. The court's charge on conspiracy, complained of in special grounds 6 and 7, correctly stated the law. Berryhill v. State, 151 Ga. 416 (1) (107 S. E. 158); Gore v. State, 162 Ga. 267 (1a) (134 S. E. 36).
7. Special ground 8, which seeks a new trial on the ground of newly discovered evidence, cannot be considered, for the reason that the mandatory provisions of Code 70-205 were not complied with, in that the alleged newly discovered evidence is that of a witness, and the movant does not, as a part of this ground, support it by affidavits as to the residence, associates, means of knowledge, character, and credibility of the witness who would testify as to the alleged newly discovered evidence. Overby v. State, 183 Ga. 353 (3) (188 S. E. 520).
8. Whether or not the State's witness William Clyde Timbs was an accomplice in the killing, was a question for the jury. Montford v. State, 144 Ga. 582 (87 S. E. 797). The jury, under the evidence, were authorized to find that William Clyde Timbs was not an accomplice, that the defendant was a party to a conspiracy to rob the store of the deceased, and that the defendant was either an actual participant in the attempted robbery and the killing, or that he, with others, went to the store where the deceased was killed for the purpose of robbing the deceased, and while the others went into the store for that purpose be remained outside in an automobile, and after the shooting aided them in their escape. The verdict finding the defendant guilty is supported by the evidence, and it was not error to overrule the motion for a new trial on the general grounds.
On the trial, the court charged the jury as follows: "I charge you that, where two or more parties conspire to rob another who is in a building, and where one or more of the conspirators remain at a convenient distance and keeps watch or guard while two of said conspirators enter said building for the purpose of committing said robbery, and in furtherance of said common design to rob, one of said conspirators kills the person intended to be robbed, such act of killing is the act of each said conspirator, including the one on the outside of said building, and each of said conspirators is as truly responsible for said killing as if he had done the killing himself, and where the killing is a probable consequence of the unlawful design to rob." Special ground 6 complains that this charge was erroneous, in that it was not applicable to the facts of the case; and further, that it was confusing and misleading, in that the court expressed an opinion as to what had been proven.
Special ground 7 complains that the court erred in charging the jury, in substance, that, if they believed beyond a reasonable doubt that the defendant conspired with one or more of the codefendants to rob the person named in the indictment, and in furtherance of said conspiracy, remained outside of the store, and one of the conspirators, while in the store for the purpose of committing a robbery, shot and killed the deceased, the killing was a probable consequence of the attempt to rob, and such killing was without justification but was intentional and with malice aforethought; and, if the jury believed that beyond a reasonable doubt, they would be authorized to convict the defendant of murder. The complaint is that such charge was erroneous and injurious, in that the court did not state the contentions of the defendant as to the conditions under which he remained outside, whether on watch or guard, or whether he was "unconscious or drunk," and further, that the court drew legal conclusions from assumed facts without instructing the jury to look to portions of the testimony which, when analyzed, might have induced a rational doubt as to the guilt of the defendant.
Special ground 8 asserted that a new trial should be granted on the ground of newly discovered evidence. The newly discovered evidence was a copy of the transcript of the testimony of Bennie Lee Timbs on the trial of the State v. Clarence L. Day, wherein said Timbs testified as a witness for the defendant Day on that trial on January 18, 1952. This ground contains the affidavits of the defendant and his counsel, and that of the court reporter, as to the correctness of the transcript. It does not appear in this ground that there were any affidavits of other witnesses as to the residence, associates, means of knowledge, character, and credibility of Bennie Lee Timbs.
Eugene Cook, Attorney-General, Hugh C. Carney, Assistant Attorney-General, Paul Webb, Solicitor-General, Charlie O. Murphy, Carl B. Copeland and Frank S. French, contra.
Kermit C. Bradford, for plaintiff in error.
ARGUED APRIL 15, 1952 -- DECIDED MAY 12, 1952 -- REHEARING DENIED JUNE 11, 1952.
Saturday May 23 04:38 EDT

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