Harnage v. State

Hill, C. J. 1. Where the bill of exceptions .contains a recital, that it was tendered within the time prescribed by law, the writ of error will not be dismissed, although it appears that the judge did not sign and certify the same within the statutory period, unless it be made to appear that his failure so to sign and certify was because of some act of the plaintiff or his counsel. Acts 1896, p. 45; Moore v. Kelly & Jones Co., 109 Ga. 799 (35 S. E. 168). 2. Where two defendants are jointly indicted and are jointly tried, and their joint motion for a new trial is overruled, a joint writ of error from the judgment overruling the motion for a new tidal can properly be sued out. 3. A juror who was first cousin of the deceased wife of the prosecutor was a competent juror. Oneal v. State, 47 Ga. 230; Patterson v. Collier, 75 Ga. 419 (58 Am. R. 472). It was not, however, reversible error for the court to withdraw the juror from the panel because of such relationship, and substitute another before the jury was stricken and sworn. 4. An exclamation of' a bystander, who saw the commission of the alleged offense, may in some cases be admissible as a part of the res gestae; but the statement of the bystander in this case was not admissible, because his language was merely expressive of an opinion or conclusion. 5. No error of law appears, and the evidence supports the verdict. Judgment affirmed. W. G. Harrison, for plaintiff in error. J. H. Gary, solicitor, contra.