White v. State , 93 Ga. App. 345 ( 1956 )

Townsend, J.

1. Special grounds of a motion, for a new trial assigning error on alleged illegal admission of evidence are without merit where substantially the same evidence is later admitted without objection. Sechler v. State, 90 Ga. App. 700, 705 (83 S. E. 2d 847); Robertson v. Robertson, 90 Ga. App. 576 (6) (83 S. E. 2d 619). The special grounds here complain of testimony of one of the State’s witnesses as to a quarrel between the defendant and the father of the deceased shortly before the fatal shooting, and testimony as to who was in the room at the time, which testimony in substance was corroborated by other witnesses without objection.

2. The testimony of certain witnesses for the State showed in substance that the defendant and others were in the home of a witness for the State where whisky was being sold; that the defendant had various arguments with the deceased and his father during the course of the evening; that at one point both the defendant and the owner of the establishment drew pistols, but later put them up; that following a renewed outburst of the quarrel, the deceased picked up a chair and his son, standing behind him, drew a knife, and that the defendant thereupon shot and killed the decedent. The evidence is sufficient to bring the act within the provisions of Code § 26-1007 as follows: “In all cases of voluntary manslaughter, there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied.” James v. State, 83 Ga. App. 847 (1 b) (65 S. E. 2d 55); Norris v. State, 68 Ga. App. 490 (1) (23 S. E. 2d 466). Accordingly the general grounds of the motion for a new trial and the first special ground, being only an amplification of the general grounds, are without merit.

The trial court did not err in overruling the motion for a new trial.

Judgment affirmed.

Gardner, P. J., and Carlisle, J., concur.