Opinion
41363.
SUBMITTED JUNE 8, 1965.
DECIDED JUNE 15, 1965. REHEARING DENIED JULY 1, 1965.
Larceny of automobile. Hall Superior Court. Before Judge Smith.
John N. Crudup, for plaintiff in error.
Jeff C. Wayne, Solicitor General, Frank C. Strickland, contra.
1. It is never error to refuse to direct a verdict in a criminal case.
2. A ground of a motion for new trial assigning error on an excerpt from the court's charge must show a valid reason why such charge is erroneous.
3. Argument based upon evidence adduced on a trial is not improper.
4. A ground of a motion for new trial based on newly discovered evidence (a new witness), which fails to include, as an exhibit, an affidavit as to the proposed witness's associates, character and credibility, is incomplete.
5. The evidence authorized the verdict.
SUBMITTED JUNE 8, 1965 — DECIDED JUNE 15, 1965 — REHEARING DENIED JULY 1, 1965.
The defendant was indicted and convicted of larceny of an automobile. On the trial of the case the evidence disclosed that a described Mercury automobile was stolen; that two days thereafter the body was recovered after various parts (doors, fenders, motor, transmission, bumper, wheels, tires, etc.), had been stripped therefrom; that the owner was paid for such automobile by his insurance company and the recovered part of the automobile body was sold as a unit to an automobile parts dealer who in turn sold it to the defendant; and that the dealer transferred the title, tag receipt, etc., to the defendant. Thereafter, it was discovered that the defendant was in possession of the automobile body with many of its original parts (doors, fenders, seats, etc.), reinstalled thereon. On the trial of the case the original owner of the automobile testified as to the identity of various parts of the automobile reinstalled thereon as well as to the identity of the body at the time it was recovered in its stripped condition, and as to his reasons for such identification. The jury returned a verdict of guilty and thereafter the trial court overruled the defendant's amended motion for new trial. Error is now assigned upon the judgment overruling the defendant's motion for new trial as amended.
1. Special grounds numbered 1, 2, 3, 4 and 6 of the defendant's amended motion for new trial all assign as error the refusal of the trial court to direct a verdict of acquittal upon various grounds. "It is well established that the refusal of the court to direct a verdict in a criminal case cannot be made the subject matter of an assignment of error in the reviewing court. Nalley v. State, 11 Ga. App. 15 ( 74 S.E. 567); Johnson v. State, 75 Ga. App. 581, 583 ( 44 S.E.2d 149)." Hunter v. State, 105 Ga. App. 564 ( 125 S.E.2d 85).
2. "A ground of a motion for new trial that complains of an excerpt from the judge's charge must in order to show error assign a valid reason why the charge is incorrect." Mutual Benefit Health c. Assn. v. Hickman, 100 Ga. App. 348 (3) ( 111 S.E.2d 380).
Special grounds numbered 7, 8, 9 and 10 of the defendant's amended motion for new trial each complains of an excerpt from the charge without assigning any reason why such charge was error. Accordingly, such grounds of the motion for new trial present nothing for decision; and special ground 12, which complains of the excerpts of the charge set forth in special grounds 7, 8, 9 and 10 because they violated the defendant's constitutional rights, without giving any reason as to how or why such excerpts violated his rights cannot be considered since it makes no attempt to show how his constitutional rights were violated. See Betts Co. v. Mims, 14 Ga. App. 786, 788 ( 82 S.E. 474); Early v. State, 14 Ga. App. 467, 471 ( 81 S.E. 385).
3. Special ground 5 of the amended motion for new trial complains that the trial court erred in overruling the defendant's motion for new trial based upon alleged improper argument of the solicitor general. The argument complained of was that under the evidence in this case this was not an amateur job, and under the evidence in this case this was a smooth operation. Under the numerous decisions of this court and the Supreme Court, exemplified by McFarlin v. State, 95 Ga. App. 425, 428 ( 98 S.E.2d 99), and the cases there cited, the argument of the solicitor general limited to the evidence in the case was not cause for a mistrial.
4. The remaining two special grounds of the defendant's motion for new trial contend that the defendant is entitled to a new trial because of newly discovered evidence. This evidence is an affidavit of one Billy Wilson who claims therein to be the person who committed the larceny of the automobile of which the defendant was convicted of stealing. No affidavit is attached showing the associates, character, and credibility of the witness as required by Code § 70-205. Consequently it was not error for the trial court to overrule such special grounds of the defendant's motion for new trial. See also Gibson v. State, 178 Ga. 707, 710 ( 174 S.E. 354); Ivey v. State, 154 Ga. 63, 67 ( 113 S.E. 175).
5. The evidence authorized the verdict. "Evidence as to venue, though slight, is sufficient where there is no conflicting evidence." Baker v. State, 55 Ga. App. 159 ( 189 S.E. 364). See also Climer v. State, 204 Ga. 776 ( 51 S.E.2d 802), and citations. While five months elapsed between the time the automobile was stolen and the time it was found in the defendant's possession, where the defendant attempted to show lawful possession by contending that the parts which (according to the testimony of the owner of such automobile), were stripped from such automobile were from a different "make" vehicle owned by the defendant, under all the evidence this fact was a question for the jury's determination. This evidence, coupled with evidence that the defendant sought out and purchased the "body shell" after it was recovered by the sheriff and sold to the used parts dealer by the owner's insurance carrier was sufficient, along with other evidence in the case, to authorize the verdict. See Wakefield v. State, 76 Ga. App. 271 ( 45 S.E.2d 675). The trial court did not err in overruling the defendant's motion for new trial.
Judgment affirmed. Eberhardt and Pannell, JJ., concur.