Loyd v. State 95 Ga. 472

Loyd v. The State.

Bleckley, C. J. — 1. Counsel for the State having conceded that, because of a former conviction, no offense committed previous to a certain date was involved in the case on trial, and having after-wards in his argument to the jury suggested a construction of the former conviction inconsistent with this concession, it was enough for the presiding judge, when his attention was called to the matter by opposing counsel, to say in the hearing of the jury that the-conceded date would govern, and afterwards so instruct the jury in his general charge. Thus treating the impropriety was all that was necessary to render it harmless.,

2. The evidence warranted the verdict, and there was no error in denying a new trial.

October 22, 1894.

Accusation of gaming. Before Judge Westmoreland. Criminal court of Atlanta. September term, 1894.

On August 6, 1894, an accusation was sworn out, charging the defendant with the offense of gaming as *473having been committed on June 16, 1894. He pleaded not guilty, and also entered a special plea of former conviction. By this special plea he showed that on January 25, 1894, he had been indicted in Fulton superior court for the offense of gaming, the day charged in the-indictment being October 16, 1893; and that on February 5,1894, he entered a plea of guilty on this indictment. The State’s solicitor conceded that the matters thus set up by the special plea were true, and that the-plea of guilty covered all offenses of gaming prior to-January 25, 1892; and stated that the evidence would be confined to periods since that date. The testimony for the State showed that the defendant played and bet for money at the game of poker, on the 26th and 27th days of March, 1894, with Hawes and four others. The-testimony for the defendant was to the effect, that said playing was in the early part of January. Defendant stated to the jury, that on February 5th, knowing he had gamed on two occasions within two years, he pleaded guilty to the indictment of Januai’y 25th; that “one of the occasions referred to, which he had in his mind and for which he supposed he was indicted, was the game of poker with Hawes and others, which is the only game he has played with Hawes”; that “the games with Hawes, and about which Hawes testified, occurred prior to the date of the indictment; that when he heard of the indictment he supposed it referred to these games,, and knowing that he was guilty, pleaded guilty.” In the concluding argument the State’s solicitor said: “Now, gentlemen of the jury, that is the charge he-pleaded guilty to, of gaming at the time fixed in this, indictment.” Defendant’s counsel objected to this as incorrect and improper argument, and requested the court to stop the solicitor, and to instruct the jury “that the defendant, in pleading guilty on February 5th, 1894,. pleaded guilty to all offenses within two years prior to-*474January 25th, 1894.” The court thereupon remarked, in the hearing of the jury, that the effect of the plea •of guilty -was to bar all prosecutions for gaming prior to that time, and that the jury could not consider any evidence of gaming before January 25th, 1894, and the jury would be so instructed in the charge. The court did instruct the jury in the charge, thus: “In considering this case you cannot go back of Jany. 25th, 1894, the time the grand jury found a true bib against this defendant for gaming, he having entered a plea of guilty on February 5th, 1894. This plea of guilty is a bar to all prosecution for the violation of the law against gaming, to Jany. 25th, 1894; and if you convict the defendant at all, it must be on evidence that proves a violation of the law since Jany. 25th, 1894.” It was contended that the court erred in refusing to stop the solicitor and -correct his statement in the manner requested by defendant’s counsel; and a new trial was asked on this ground, and on the further ground that the verdict was contrary to law and evidence.