Parsons v. State , 32 Ga. App. 504 ( 1924 )

Blood wokth, J.

1. For no reason assigned did the court err in charging the jury: “If there are»material conflicts in the evidence, you ought to endeavor to reconcile all of such conflicts, if you can do so, so as to make each and every witness speak the truth, and without imputing perjury to anybody, the law presuming they are all honest and tell the truth, until the contrary is made to appear by proof.”

2. When the court concluded the charge to the jury the indictment was handed to them. Attached to it was an affidavit made before the presiding judge by Richard Caldwell, a witness for the State, upon which was issued the original warrant under which the accused was arrested, and in which Caldwell swore that “in the early fall of 1923 in said [Whitfield] county, he bought a pint of whisky from Elmer Parsons for $1.25.” Soon after the jury retired counsel for the accused discovered that the indictment, then in the hands of the jury, had attached to it this affidavit, and asked the court to “send for the indictment and have detached from it the affidavit.” This was done. Counsel then requested the court to instruct the jury that if they had examined the paper they would disregard it, as it had not been introduced in evidence. This request was refused, the court stating that the affidavit found its way into the hands of the jury by the oversight of both the solicitor-general and counsel for the. defendant, and that it would have been detached at the request of either of them. The court said also, “Just take the indictment back to them [the jury] with the affidavit detached. I don’t think that could have influenced them one way or the other. It is a mere repetition of what he has testified here.” The record shows that the witness Caldwell swore on the trial that he had bought a pint of whisky from the defendant in Whitfield county “along last October, a little before October,” and paid him $1.25 for it. Held: Under the particular facts of the case it was not error requiring the grant of a new trial for the judge to fail to give to the jury the instructions requested.

Decided July 15, 1924. M. B. Eubanks, for plaintiff in error. J. M. Lang, solicitor-general, contra.

3. There is evidence to support the verdict.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.