Herbert v. State
Herbert v. State
Opinion of the Court
1. The motion for a new trial contains thirteen grounds including the three general grounds. Following the thirteen grounds, as they appear in the record, the judge makes the following statement: “The foregoing amendment set out in ground thirteenth of the amended motion for new trial is allowed as prayed, and the recitals of fact therein contained are hereby approved as true. Ordered that the said amendment together with the proceeding [preceding?] nine amended grounds of the amended motion for new trial be filed as a part of the record in the case in which the said amendments are entitled.” This entry approves the 13th ground only. Each of the special grounds, except the 13th, is based upon alleged errors in the charge, and to each of them is appended a note as follows: “The requested instruction set out in the foregoing (here is given the number of the ground) amended ground of the motion for new
2. The 13th ground of the motion alleges that the court erred in admitting in evidence “as a confession” the following: “I asked the defendant if that was his whisky in'the jug which was sitting on the table, and he said it was.” This confession was objected to on the ground that it “was not freely and voluntarily made.” Whether or not the confession was freely and voluntarily made was submitted to the jury, and by their verdict they declared that it was, and their finding was approved by the trial judge, and, as there is evidence to support their finding, this court will not send the case back for another trial because of this ground. Moreover, there was other evidence to show the ownership of the whisky. The facts in this case clearly differentiate it from Allen v. State, 4 Ga. App. 458 (61 S. E. 840), relied on by plaintiff in error.
Judgment affirmed.
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