Suesberry v. State

HARPER, Judge. Appellant on this trial was convicted of manslaughter, and his punishment assessed at two years confinement in the State penitentiary. The first two grounds in the motion for a new trial complain of the *440 action of the court in admitting the testimony of the witnesses E. B. Sisk and John Price. As no bills of exception were reserved to the introduction of the testimony of these witnesses, the record does not disclose that this testimony was objected to at the time of its introduction, nor during the trial of the case, and after verdict it is too late to object to the introduction of testimony admitted on the trial of the case. The third ground of the motion for a new trial reads as follows: “The court erred in giving special charges 1, 2, 3, 4 as requested by the defendant.” Of course, the court would not err in giving a special charge requested by the person on trial, for if error there be in giving such charge, it would be error invited by defendant in requesting such instruction. However, while the motion for a new trial reads as indicated above, yet the record discloses that such special charges were not in fact given, but were marked “refused” by the court, and the question arises, is the objection too general to be considered. In this ground of the motion there can be no doubt that the exception is too general to be considered. However, the next ground in the motion complains that the court erred in failing to “charge the jury that if they believed that septic poison was introduced into the wound by the cloth sweater or towel placed there by the witness Brice after the cutting that they should acquit the defendant of the charge of murder or manslaughter.” The court did in fact so charge the jury in paragraphs fourteen and fifteen of the charge. These are all the grounds alleged in the motion for a new trial, which was overruled b'y the court. After the motion for a new trial had been overruled by the court what is termed “an amended motion for a new trial” was filed without leave of the court to do so being obtained, and which was never acted on by the trial court. Under such circumstances the amended motion for a new trial can not be considered by us. The judgment is affirmed. Affirmed.