Lober v. State

Broyles, O. J. The defendant was convicted of the offense of selling whisky; and his motion for new trial was overruled. One ground of the motion was based on the refusal of the judge to declare a mistrial because of the alleged improper and prejudicial Statement made by the solicitor-general in his concluding' argument to the jury, to wit: “I am sure that the people of this county approve what Judge Mitchell [the judge who presided in the case] is doing in these liquor cases. Judge Mitchell knows something about this case that we do not know. He is trying to get at the bottom of this transaction.” It appears that the court merely overruled the motion to declare a mistrial, “and allowed the solicitor-general to continue said argument.” It is alleged in the assignment of error that “said argument was improper and prejudicial to movant, for the reason that it intimated to the jury that the presiding judge knew the defendant to be guilty, and intimated to [205] the jury that they should consider such knowledge on the part of the court in making their verdict, and that the jury should make their verdict upon matters not in evidence in said case.” Held, that the statement of the solicitor-general was prejudicial to the movant, and was not authorized by the evidence. The verdict not having been demanded by the evidence, the refusal to grant a new trial was error. See Hammond v. State, 51 Ga. App. 225 (179 S. E. 841), and cit.; Fair v. State, 168 Ga. 409 (148 S. E. 144); Washington v. State, 87 Ga. 12 (3) (13 S. E. 131); Bryant v. State, 36 Ga. App. 656 (137 S. E. 797). Decided June 13, 1939. Hardin •& McCamy, for plaintiff in error. J. H. Paschall, solicitor-general, contra. Judgment reversed. Maolntyre and Guerry, JJ., concwr.