Lavender v. State

Russell, J. Lavender was convicted of assault with intent to rape. The evidence for the State is overwhelming, both as to the assault and as to the identity of the defendant as the guilty party. The defendant relied on an alibi. The State fixed the time at about 3 o’clock p. m. Two or three witnesses testified that at this hour the defendant was' at work in a hotel some distance from the scene of the crime. In arguing the case to the jur/ the solicitor-general contended that the apparent conflict in the evidence as to the time of day could be reconciled on the theory that at Atlanta both Central and Eastern time are used, and that there is an hour’s difference between the two. The defendant’s counsel objected to the argument, on the ground that there was no evidence to support it. The solicitor-general argued to the court that judicial cognizance could be taken of the difference in these times; but, on seeing that the court was about to rule to the contrary, he yielded and ceased to argue on the point. The defendant’s counsel did not invoke a ruling by the judge. No motion for mistrial was made, nor was the court requested to charge the jury that they should disregard the argument. We do not deem it necessary to decide whether judicial cognizance .can be taken of the difference between Central and Eastern times. This is a fact of such common and universal knowledge that we are inclined to agree with the learned solicitor-general that proof thereof can be dispensed with. It is unnecessary to prove that which all men know. But, irrespective of that, the defendant has waived his right for a new trial because of this supposed error. He should have invoked a ruling, or made a motion for a mistrial, or at least have requested the court to instruct the jury to disregard the argument. By- acquiescing in the abandonment of the argument by the solicitor-general, and in failing to take prompt and immediate action to cure the supposed error, he has precluded himself 857 from complaining thereof. Ga. Ry. & Elec. Co. v. Dougherty, 4 Ga. App. 614 (62 S. E. 158). In the fourth and fifth grounds of the motion for a new trial complaint is made of the admission of certain evidence as to a gun. These' grounds are incomplete, in that they fail to state that the plaintiff in error informed the court of his objection thereto at the time the evidence was offered. Furthermore, the evidence was highly relevant for the purpose of identifying the prisoner, and was not inadmissible for any of the reasons here urged. The evidence practically demanded a verdict of guilty, and no error of law appears. . Judgment affirmed.