McDonald v. State , 72 Ga. 55 ( 1884 )

Blandford, Justice.

The plaintiff in error was indicted for an assault and battery. The state, on the trial, offered to prove that a few days after the battery, accused said he wished he had broken every bone in prosecutor, on account of the manner in which he had been treated afterwards by prosecutor. This testimony was objected to by the accused as illegal. The objection- was overruled, by the court, and the evidence was allowed to go to the jury. Subsequently the court withdrew the evidence from the jury, upon motion of defendant’s counsel. The general rule is that, when the court has admitted illegal evidence to the jury, which is subsequently ruled out, this subsequent action of the court will cure the error in the admission of the illegal evidence ; but this rule is subject to this exception: where the illegal evidence, wrongfully admitted, upon the facts of tho given case, may have worked such harm or injury to the accused as to render it probable that the subsequent withdrawal of such evidence from the jury did not heal the wounds so inflicted, then a new trial will be granted. This court, in Hall vs. State, 65 Ga., 36, intended to go to this extent only, although the language employed by the lamented judge in that case is susceptible of a construction that would carry that case much further.

By applying the minor rule thus laid down to the case now before us, we think it is probable that the error of the court, in admitting the illegal testimony complained of, caused such injury to plaintiff in error as the subsequent withdrawal of the same did not cure, and for this we reverse the judgment, and grant a new trial.

Judgment reversed.