Merriweather v. State
Merriweather v. State
Opinion of the Court
Upon his trial under an indictment charging him with the murder of John Cherry, alias Field Cherry, the defendant was found guilty of voluntary manslaughter and sentenced to a term of from 18 to 20 years in the penitentiary. His motion for a new trial, based upon the usual general grounds and 3 special grounds, was denied, and he has brought the present writ of error to have that judgment reviewed.
It appears from the evidence and the defendant’s statement that Cherry had had some altercation with the defendant’s aged mother, in which the deceased pushed the mother and caused her to fall. Though the defendant was not present on that occasion, he was apprised of the incident. When the defendant chanced to encounter Cherry later, he asked Cherry, “You the one that pushed my mama down?” Cherry replied, “I didn’t push her down. I was inside the door. She walked to the door and tried to push me up in there and I shoved her down.” With this reply Cherry put his hand in his pocket and backed two or three steps into a “fighting stance.” The- defendant thereupon advanced upon him and stabbed Cherry in the chest. Cherry died from that stab wound almost instantly. The defendant in his statement to the jury admitted the homicide, but stated that
In special ground 1 error is assigned upon the illegal admission of the following testimony of the witness, John C. Bowman: “I saw Proverb’s sister come in the pool room while the Cherry boy was there. That was that afternoon. That night when I got back to town the boy was dead. I figure the time I saw the Cherry Boy in the pool room and Proverb’s sister came in there was in the afternoon around about 5 or 6 or something like that. She just came in there and asked him was he the one that pushed her mother down—he was shooting pool—and he just said ‘not him’—so they went on out the back door. Both of them. One went one way and one the other. He was shooting pool and Proverb’s sister came in and said, 'are you the one that pushed my mother down?’ And he said, ‘it wasn’t me’. He went on up the street and I ain’t seen him no more til-after I heard he had done got killed. The girl had a coca-cola bottle. She put it down. He had a cue stick and she had had the bottle up. She was holding the bottle by the neck, up like that. That is what I would call drawed back.”
In special ground 2 error is assigned upon the refusal of the trial court to grant a mistrial on account of the admission of this same irrelevant evidence of which complaint is made in special ground 1.
The erroneous admission of irrelevant evidence is not cause for a new trial where evidence of the same character and import are admitted without objéction. Trawick v. Chambliss, 42 Ga. App. 333 (156 S. E. 268), and cit.
Grounds of a motion for new trial which are expressly abandoned in this court either in the brief or oral argument of counsel are to be treated as abandoned. Code § 6-1308. Special ground 3 of the motion for new trial comes within this rule and will not be considered. The ground was expressly abandoned by counsel for the defendant in his oral argument in this court.
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.