The courts may grant new trials in all cases when any material evidence may be illegally admitted to or illegally withheld from the jury over the objection of the movant.
(Ga. L. 1853-54, p. 46, § 1; Code 1863, § 3638; Code 1868, § 3663; Code 1873, § 3714; Code 1882, § 3714; Civil Code 1895, § 5478; Penal Code 1895, § 1059; Civil Code 1910, § 6083; Penal Code 1910, § 1086; Code 1933, § 70-203.)
Cross references.- Evidence generally, T. 24.
Law reviews.- For article, "A Discussion of the 1957 Amendments to Rules of Practice and Procedure in Georgia," see 19 Ga. B.J. 395 (1957).
JUDICIAL DECISIONSANALYSIS
If evidence is admissible for any purpose, the admission of that evidence will not cause a new trial. West v. West, 199 Ga. 378, 34 S.E.2d 545 (1945).
Test as to whether illegal evidence warrants new trial.
- Error of admitting illegal evidence must be such as induced or largely contributed to erroneous finding, and such error that if new trial is granted, result should in all probability be different on another trial. Daughtry v. Savannah & S. Ry., 1 Ga. App. 393, 58 S.E. 230 (1907).
When evidence of guilt is overwhelming.
- When evidence is overwhelming that the defendant is guilty, even errors in admission or rejection of testimony will not operate so as to require new trial. Brannon v. State, 21 Ga. App. 328, 94 S.E. 259 (1917). But see Thigpen v. Batts, 199 Ga. 161, 33 S.E.2d 424 (1945).
When evidence rejected relates to matter collateral to main transaction, and evidence touching main transaction makes a clear case of guilt, rejection of such evidence does not in all cases require grant of new trial. Green v. State, 154 Ga. 117, 113 S.E. 536 (1922).
Ruling upon admissibility of testimony may be reversed by motion for new trial. Eaves v. Field & Son, 8 Ga. App. 69, 68 S.E. 556 (1910).
Admission of illegal testimony on one side will not justify illegal rebutting testimony on other. Two wrongs do not make a right. Housing Auth. v. Kolokuris, 110 Ga. App. 869, 140 S.E.2d 239 (1965).
Evidence not conforming to pleadings, admitted without objection.
- Although pleadings may not present whole issue, if it is fully made by evidence without objection, it is too late, after verdict, for losing party, to make that the ground of a motion for new trial. Metropolitan Life Ins. Co. v. Hale, 47 Ga. App. 674, 171 S.E. 306 (1933).
Sufficiency of the evidence.
- Because an accomplice's testimony was corroborated by defendant's recent possession of a stolen boat as well as defendant's flight from the scene of the crime, the evidence was sufficient to convict the defendant of theft by taking; consequently, the trial court properly denied the defendant's motion for a new trial. Johnson v. State, 275 Ga. App. 161, 620 S.E.2d 433 (2005).
There was sufficient evidence to support a defendant's conviction for felony murder of the love interest of the defendant's spouse, and the trial court did not err by denying the defendant's motions for a directed verdict or for a new trial; the trial court properly concluded that the defendant failed to prove by a preponderance of the evidence that the defendant was incompetent to stand trial based on the testimony of a state psychiatrist who determined that the defendant had some intellectual limitations and a problem with literacy, but found the defendant capable of rational and logical discussion about the circumstances of the incident to be tried, was capable of assisting in the defense, and understood the nature and object of the legal proceedings. The trial court also did not err by refusing the defendant's requested jury charges as the charges either did not relate to the evidence or the charge given was all that was necessary. Velazquez v. State, 282 Ga. 871, 655 S.E.2d 806 (2008).
Inadmissible testimony given on cross examination that is unresponsive to the question.
- While answer that is responsive to question on cross-examination will not be ruled out although it would otherwise have been inadmissible as evidence, testimony that is inadmissible, which is given on cross-examination but is not responsive to question, should be ruled out; and it is error to overrule the motion to exclude it. Mickle v. Moore, 188 Ga. 444, 4 S.E.2d 217 (1939).
Admission of character evidence.
- Because evidence of defendant's gang membership was admissible both as part of the res gestae of the crime and to show motive, the trial court properly denied the defendant's motions in limine and for a new trial, even though the evidence implicated defendant's character. Garibay v. State, 275 Ga. App. 170, 620 S.E.2d 424 (2005).
Trial court did not err in denying the defendant's motion for a mistrial after an investigating officer testified on cross- examination that the defendant gave the officer a statement right after the defendant had talked with the defendant's parole officer because the testimony followed defense counsel's question regarding the content, not the timing, of the defendant's statement; a passing reference to a defendant's record does not place his or her character in evidence, and a nonresponsive answer that impacts negatively on a defendant's character does not improperly place his or her character in issue. Lanier v. State, 288 Ga. 109, 702 S.E.2d 141 (2010).
Similar transaction evidence.
- Trial court properly denied defendant's motion for a new trial, challenging the admission of similar transaction evidence, because the similar transaction evidence properly corroborated the identity, intent, and course of conduct defendant engaged in with regard to two other home invasions with several other perpetrators that also included the rape of a victim. Grier v. State, 290 Ga. App. 59, 658 S.E.2d 827 (2008), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Admission of telephone conversation between defendant and mother.
- Trial court did not abuse the court's discretion in denying the defendant's motion for mistrial, which was based on the admission of a recorded telephone conversation between the defendant and defendant's mother, who stated "because it's on your record," in response to why the defendant could not be disappointed if the defendant was denied bond; the comment was fleeting and was not a direct comment about the defendant's criminal history, and the mother did not comment on the content of the defendant's criminal record or even say, with certainty, that one did or did not exist. Hamrick v. State, 304 Ga. App. 378, 696 S.E.2d 403 (2010).
Alleged prosecutorial misconduct.
- Because a prosecutor's comments were directed at defense counsel's failure to rebut or explain the state's evidence and the prosecutor made a permissible analogy, there was no prosecutorial misconduct; consequently, the trial court did not err in denying defendant's motion for a new trial. Duffy v. State, 271 Ga. App. 668, 610 S.E.2d 620 (2005).
Disposition of case on diminished record.
- Trial court may not on motion for judgment notwithstanding the verdict eliminate evidence on the ground that the evidence was improperly received at the trial and then dispose of the case on the basis of the diminished record. Mays v. Daniels, 179 Ga. App. 677, 347 S.E.2d 642 (1986).
Coindictee's statement on polygraph examination.
- Trial court did not abuse the court's discretion by declining to declare a mistrial when a coindictee testified that the coindictee had taken a polygraph examination because the trial court's prompt curative instructions to the jury to disregard the coindictee's statement was sufficient to prevent the testimony from having any prejudicial impact; it was highly improbable that the coindictee's remarks influenced the outcome of the case, in view of the strong weight of the evidence against the defendant. Gandy v. State, 290 Ga. 166, 718 S.E.2d 287 (2011).
Admission of statement given after waiver of right to counsel.
- Trial court did not err by admitting the defendant's custodial statement to a police detective because after the defendant invoked the right to counsel, the detective ceased the interrogation and was returning the defendant to jail when the defendant told the detective that the defendant would tell the detective what the detective wanted to know and then gave an incriminating statement upon returning to the room where the interrogation was conducted. Anthony v. State, 315 Ga. App. 701, 727 S.E.2d 528 (2012).
Unredacted recording of phone conversation should have been admitted.
- Trial court erred in denying the defendant's motion for new trial because the court committed harmful error when the court prevented the defendant from playing to the jury an unredacted recording of a phone conversation between a witness and a friend; the witness was essentially acting as an informant, or at least an agent of police investigators, at the time of the phone conversation, and thus, the witness's recorded statements were admissible as original evidence pursuant to former O.C.G.A. § 24-3-2 (see now O.C.G.A. § 24-8-801). Redinburg v. State, 315 Ga. App. 413, 727 S.E.2d 201 (2012).
Motion for new trial properly denied.
- Because the police officers saw a vehicle matching a dispatcher's description shortly after receiving the dispatch, and the vehicle attempted to elude the officers, in violation of O.C.G.A. § 40-6-395(a), the officers had a specific and articulable reason to stop the vehicle; consequently, the trial court properly denied the defendant's motions to suppress, in limine, and for a new trial. Francis v. State, 275 Ga. App. 164, 620 S.E.2d 431 (2005).
Trial court did not err by denying the defendant's motion for a mistrial after the jurors watched a portion of the defendant's videotaped statement, which the jurors were not supposed to view, because the jurors clearly indicated that the jurors could and would follow the trial court's curative instruction. Alatise v. State, 291 Ga. 428, 728 S.E.2d 592 (2012).
Cited in Campbell v. State, 155 Ga. 127, 116 S.E. 807 (1923); Evans v. Caldwell, 52 Ga. App. 475, 184 S.E. 440 (1936), aff'd, 184 Ga. 203, 190 S.E. 582 (1937); Harper v. Perry, 190 Ga. 233, 9 S.E.2d 160 (1940); Miller v. State, 69 Ga. App. 847, 26 S.E.2d 851 (1943); Edmonds v. State, 201 Ga. 108, 39 S.E.2d 24 (1946); Ludwig v. J.J. Newberry Co., 78 Ga. App. 871, 52 S.E.2d 485 (1949); Hamel v. Elliott, 79 Ga. App. 633, 54 S.E.2d 688 (1949); McBerry v. Ivie, 116 Ga. App. 808, 159 S.E.2d 108 (1967); Fendley v. Weaver, 121 Ga. App. 526, 174 S.E.2d 369 (1970); Rowell v. State, 122 Ga. App. 568, 177 S.E.2d 812 (1970); Johnson v. Ervin, 236 Ga. 605, 225 S.E.2d 21 (1976); Stillman v. Tempo Carpets, Inc., 174 Ga. App. 66, 329 S.E.2d 197 (1985); Odom v. Dekle, 178 Ga. App. 788, 344 S.E.2d 675 (1986); Joe N. Guy Co. v. Valiant Steel & Equip., Inc., 196 Ga. App. 20, 395 S.E.2d 310 (1990); Payne v. Joyner, 197 Ga. App. 527, 399 S.E.2d 83 (1990).
Admission Over Objection
1. In General
When material and illegal evidence is improperly admitted, a new trial will be granted. Cherry v. McCutchen, 68 Ga. App. 682, 23 S.E.2d 587 (1942).
When erroneously admitted evidence is harmful, the admission is ground for a new trial. Owens v. State, 118 Ga. 753, 45 S.E. 598 (1903).
Harmless error in admission of evidence not ground for new trial.
- Objection may not be waived as to introduction of evidence on same subject matter through cross-examination or otherwise; nevertheless, a new trial will not be granted for harmless error in the admission of evidence. Eiberger v. Martel Elec. Sales, Inc., 125 Ga. App. 253, 187 S.E.2d 327 (1972).
While it was error for a trial court to rule that a prior inconsistent statement needed to be authenticated before statement could be used for impeachment, that error was harmless due to the overwhelming evidence of defendant's guilt; defendant was properly denied a new trial on defendant's conviction for aggravated child molestation. Also, while it was error to exclude a prior inconsistent statement by another witness, the fact that the defendant was able to vigorously examine the witness on the statement and the fact that the contents of the statement were made known to the jury rendered that error harmless. Robinson v. State, 265 Ga. App. 481, 594 S.E.2d 696 (2004).
While the trial court erred by denying the defendant's motion in limine, by overruling defendant's objection on hearsay grounds, and by overruling defense counsel's objections to the prosecution's improper character evidence, it was highly probable that the errors did not contribute to the judgment convicting the defendant of trafficking in cocaine; therefore, the defendant was not entitled to a new trial. Williams v. State, 312 Ga. App. 693, 719 S.E.2d 501 (2011).
Trial court did not err in refusing to grant a mistrial on the ground that an eyewitness's testimony was based on hearsay because to the extent the testimony exposed prior difficulties between the codefendants and the victim, it was cumulative of other testimony that the defendant and the codefendant threatened the victim the day before the shooting; the other evidence implicating the defendant in the shooting made it highly probable that the hearsay testimony did not contribute to the verdict. Mathis v. State, 291 Ga. 268, 728 S.E.2d 661 (2012).
Admission of immaterial evidence not reversible error.
- It is not reversible error to admit evidence that is merely irrelevant and immaterial. Mickle v. Moore, 188 Ga. 444, 4 S.E.2d 217 (1939); McDaniel v. State, 197 Ga. 757, 30 S.E.2d 612 (1944).
Admission of irrelevant testimony will not furnish ground for new trial unless the admission injuriously affected the party making the complaint. Turbaville v. State, 58 Ga. 545 (1877).
Admission of immaterial evidence without harmful effect is not a good ground for new trial. Cherry v. McCutchen, 68 Ga. App. 682, 23 S.E.2d 587 (1942).
Rejection of testimony, admissible or inadmissible, which has no probative value whatever, or admitting legal testimony which is wholly immaterial, is not sufficient cause for granting a new trial. Because testimony has been inadvertently admitted, which is wholly immaterial, and which it is apparent could have helped neither party, a new trial will hardly be awarded in an important case. Weeks v. State, 79 Ga. 36, 3 S.E. 323 (1887).
Admission of irrelevant testimony, not affecting verdict, will not require new trial. Purser v. McNair, 153 Ga. 405, 112 S.E. 648 (1922).
Corrective instructions to rule out illegal testimony.
- Ordinarily, when illegal testimony is placed in evidence, it is not an abuse of discretion to refuse to grant a mistrial if sufficient corrective instructions are given in ruling out the testimony. This is true even if the illegal testimony has the effect of placing the defendant's character in issue, especially when the testimony is volunteered by the witness and not directly elicited by the solicitor. Witt v. State, 157 Ga. App. 564, 278 S.E.2d 145 (1981); Glenridge Unit Owners Ass'n v. Felton, 183 Ga. App. 858, 360 S.E.2d 418 (1987).
Erroneous admission of evidence over objection not reversible error.
- When certain evidence is admitted over objection, but similar evidence to the same effect is admitted without objection, admission of evidence objected to will not constitute reversible error, even if admission of evidence was erroneous. Louisville & N.R.R. v. McCamy, 72 Ga. App. 769, 35 S.E.2d 206 (1945).
Erroneous admission of evidence over objection not reversible error when similar evidence is admitted without objection. Davis v. Fulton Nat'l Bank, 77 Ga. App. 400, 48 S.E.2d 773 (1948).
Testimony, even though illegally admitted over proper objection, will not constitute reversible error when substantially the same testimony is later introduced without objection. Johnson v. State, 84 Ga. App. 745, 67 S.E.2d 246 (1951).
When jury considers evidence on same subject matter, admitted without objection, it is not harmful error to allow the same evidence again admitted, over objections, since the admission would probably not change the result. Eiberger v. Martel Elec. Sales, Inc., 125 Ga. App. 253, 187 S.E.2d 327 (1972).
Effect of ruling out illegally admitted evidence.
- As a general rule, error in admitting illegal evidence is cured by subsequently ruling the evidence out. This rule, however, is subject to exception; for when illegal evidence may have worked such harm or injury to accused as to render it probable that the subsequent withdrawal of the evidence will not heal the injury inflicted by the improper admission, error is sufficient ground for grant of a new trial. Thompson v. State, 12 Ga. App. 201, 76 S.E. 1072 (1913), see McDonald v. State, 72 Ga. 55 (1883).
2. Application
Erroneously admitted evidence, calculated to harm defendant.
- When it cannot be said that erroneously admitted evidence was not calculated to harm the defendant and prejudice the defendant's cause, the admission is ground for new trial. Brown v. State, 119 Ga. 572, 46 S.E. 833 (1904); Johnson v. State, 128 Ga. 71, 57 S.E. 84 (1907).
When illegal evidence impeaching credibility of party was admitted, a new trial was justified. Jenkins v. Lane, 154 Ga. 454, 115 S.E. 126 (1922).
When opinion of plaintiff that the plaintiff was damaged was admitted, new trial was justified. Central R.R. & Banking Co. v. Kelly, 58 Ga. 107 (1877).
Admission of expressions tending to mitigate rather than establish guilt, not ground for new trial. Pines v. State, 21 Ga. 227 (1857).
Admission of record of divorce between accused and deceased was not ground for new trial. Lucas v. State, 146 Ga. 315, 91 S.E. 72 (1916).
Admission of evidence in chief after state and defendant have closed is within court's discretion. Cooper v. State, 103 Ga. 63, 29 S.E. 439 (1897).
Admission of some hearsay or opinion evidence at interlocutory hearing.
- Rules of evidence are not in all respects as rigidly enforced on interlocutory hearings as on final trials and admission of some hearsay or opinion evidence, will not necessarily require reversal. Griffith v. City of Hapeville, 182 Ga. 333, 185 S.E. 522 (1936).
Inadvertent reference to insurance in personal injury action did not warrant new trial.
- Because the trial judge took the appropriate curative steps in denying an opposing driver's motions for both a mistrial and a new trial after the suing driver made an inadvertent reference to insurance, including rebuking the suing driver and issuing a curative instruction, the court did not abuse the court's discretion in denying the opposing driver's motions; moreover, the appeals court could not conclude that the opposing driver suffered any wrong or oppression as a result of the trial court's orders. Defusco v. Free, 287 Ga. App. 313, 651 S.E.2d 458 (2007).
Previously withheld exculpatory information.
- If exculpatory information is withheld from a defendant prior to trial (after a proper motion to release all such evidence), but is later introduced at trial by the state, the defendant is not entitled to a mistrial unless the defendant shows that the defendant's defense was thereby prejudiced and that the defendant was denied a fair trial. Edwards v. State, 176 Ga. App. 369, 337 S.E.2d 27 (1985).
False evidence allegation did not warrant new trial.
- Although the defendant contended that along with the revocation of defendant's codefendant's plea deal after the codefendant made statements in contradiction of the plea hearing testimony and defendant's assertion that the defendant refused to give false testimony to the prosecutor in exchange for a plea deal, proved that the prosecutor knowingly allowed false evidence to be presented to the jury in violation of due process, the trial court did not err when the court did not credit the motion for new trial testimony; since the defendant's codefendant was not privy to what occurred in the house after the codefendant ran out and the defendant did not present any evidence at trial that the defendant's codefendant's testimony was false, the revocation of the codefendant's plea deal was inapposite as was defendant's rejection of the plea deal offer. Therefore, the trial court did not err in finding there was no misconduct warranting a new trial pursuant to O.C.G.A. § 5-5-22. Cooper v. State, 287 Ga. 861, 700 S.E.2d 593 (2010), overruled on other grounds, Smith v. State, 290 Ga. 768, 723 S.E.2d 915 (2012).
Expert testimony.
- Trial court erred in admitting, over objection, the testimony of the parents' expert witness about the standard of care in the day-care industry regarding the handling of infants in a case when the infant of the parents died at a hospital after being found pale at the infant's day-care center; the correct standard was that of the average parent, the jury did not need expert testimony to understand or apply that standard of care, and the expert's testimony confused the jury. Accordingly, the child-day care center was granted a new trial because the error in admitting the expert testimony was not harmless. Applebrook Country Dayschool, Inc. v. Thurman, 264 Ga. App. 591, 591 S.E.2d 406 (2003).
Trial court did not abuse the court's discretion in denying the defendant's motion for mistrial after one of the state's expert witnesses testified about a medical examination the expert made of the victim that was not reflected in the records the state produced before trial because the doctors who examined the victim shortly after the victim had been injured testified to finding cell death in portions of the victim's brain, resulting in irreversible brain damage; the expert's testimony that the later examination also indicated a permanent brain injury was cumulative of the other medical evidence. Eskew v. State, 309 Ga. App. 44, 709 S.E.2d 893 (2011).
Testimony regarding codefendant's statement.
- Trial court did not err in denying the defendant's motion for mistrial because the defendant did not show any harm resulting from the investigating police officers' testimony regarding the codefendant's statement, which referenced an "individual" with the codefendant on the night of the robbery who could be considered references to a person whom the jury could infer to be the defendant; the evidence against the defendant was overwhelming. Anderson v. State, 311 Ga. App. 732, 716 S.E.2d 813 (2011).
Interview notes not produced.
- Assuming that notes of an interview that was suppressed by the state were evidence favorable to the defendant, the defendant failed to show either that the notes were not available to the defendant through reasonable diligence, or that the course of the defendant's trial would have been any different had the notes been produced. Thus, there was no error in the trial court's denial of the defendant's motion for a new trial based upon a Brady violation. Freeman v. State, 284 Ga. 830, 672 S.E.2d 644 (2009).
Evidence of arrest on another charge admissible.
- Defendant was not denied a fair trial when the jury was allowed to hear evidence of an unrelated arrest because the circumstances of the defendant's arrest for obstruction of, and giving false information to, an officer were admissible as evidence of flight. Durham v. State, 309 Ga. App. 444, 710 S.E.2d 644 (2011).
Remedial charge sufficient to remedy error.
- Trial court did not err in denying the defendant's motion for mistrial because a remedial charge, which repeatedly admonished the jury that an accomplice's guilty plea was not to be considered in any way with respect to the defendant's guilt, was sufficient to remedy the error of the admission of the plea and render a mistrial unnecessary. Robinson v. State, 312 Ga. App. 110, 717 S.E.2d 694 (2011).
Trial court did not abuse the court's discretion in refusing to grant a mistrial after the state elicited hearsay testimony because the trial court took sufficient precautions to exclude the inadmissible evidence from the jury's consideration as evidence. Sanders v. State, 290 Ga. 445, 721 S.E.2d 834 (2012).
Harmful Brady violation.
- Trial court erred in denying the defendant's motion for new trial because the state committed a harmful Brady violation when the state failed to turn over to the defense a written statement that the victim gave to police; the victim's impeachable omission was not known to the defense before or during trial, and the victim's statement was material to the defense since had the statement been disclosed, the outcome of the case could have been different. Jackson v. State, 309 Ga. App. 796, 714 S.E.2d 584 (2011).
Erroneous Exclusion of Evidence
Necessary showing for exclusion of testimony to be considered ground for new trial.
- For exclusion of oral testimony to be considered as ground for new trial, it must appear that pertinent question was asked, and that court ruled out answer and that a statement was made to court at time showing what answer would be; and that such testimony was material, and would have benefited complaining party. Ellison v. State, 21 Ga. App. 259, 94 S.E. 253 (1917).
Rejecting evidence tending to sustain defense.
- When rejected evidence relates to main transaction and tends to sustain defense set up by the defendant, rejection of such evidence requires grant of a new trial. Green v. State, 154 Ga. 117, 113 S.E. 536 (1922).
Rejection of evidence partly admissible and partly inadmissible.
- When evidence, some of which is admissible, and some of which is not admissible, is offered as a whole, a new trial will not be granted because of the evidence's rejection. Arnold v. State, 131 Ga. 494, 62 S.E. 806 (1908).
Erroneous exclusion when record contains similar evidence establishing same fact.
- When certain evidence is excluded over objection, but record contains similar evidence establishing fact which it is sought to establish by evidence which has been excluded, such exclusion will not constitute reversible error, even if exclusion was erroneous. Louisville & N.R.R. v. McCamy, 72 Ga. App. 769, 35 S.E.2d 206 (1945).
No bad faith in failing to turn over videotaped statements.
- Defendant's new trial motion under O.C.G.A. § 5-5-22 was properly denied, as the fact that the state failed to turn over two videotaped statements from defendant's sons, arising from criminal charges due to a domestic dispute, was based on inadvertance rather than bad faith, there was unimpeached eyewitness testimony from other witnesses that was sufficient to support defendant's convictions pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8), and there was no showing that the defendant suffered the kind of prejudice that undermined confidence in the outcome of the trial; accordingly, defendant's Brady rights were not violated and there was no violation of O.C.G.A. §§ 17-16-6 and17-16-7. Ely v. State, 275 Ga. App. 708, 621 S.E.2d 811 (2005).
Objection
Admission of illegal evidence without objection.
- It is not ground for new trial that illegal evidence was admitted when no objection was made to the introduction when offered, nor at any time anterior to rendition of the verdict. Licett v. State, 23 Ga. 57 (1857); Evans v. State, 33 Ga. 1 (1861).
When counsel for defendant expressly consents to admission of evidence, the admission will not thereafter serve as ground for new trial. Williams v. State, 119 Ga. 425, 46 S.E. 626 (1904).
When no objection is made to illegal evidence on trial of case the admission is not ground for a new trial. Weldon v. State, 78 Ga. App. 530, 51 S.E.2d 605 (1949).
When evidence is illegally admitted, a new trial may be granted, yet the general rule is that a specific ground of objection must be made at the time the evidence is offered. Boggs v. Griffeth Bros. Tire Co., 125 Ga. App. 304, 187 S.E.2d 915 (1972).
Failure to make objection to admission of illegal evidence will be treated as a waiver and will prevent court, on motion for new trial from inquiring as to competency of such evidence. Andrews v. State, 118 Ga. 1, 43 S.E. 852 (1903); Richardson v. State, 141 Ga. 782, 82 S.E. 134 (1914); Boggs v. Griffeth Bros. Tire Co., 125 Ga. App. 304, 187 S.E.2d 915 (1972).
Defendant's claim that defendant's character was improperly placed into evidence when an officer testified that the officer found defendant's prison identification card in defendant's pocket was waived as defendant failed to make a further objection or renew defendant's motion for a mistrial after a curative instruction was given. McCullough v. State, 268 Ga. App. 445, 602 S.E.2d 181 (2004).
Objection to evidence must specify ground upon which objection is based.
- When objection to evidence does not state ground upon which the objection is based, error cannot be assigned upon overruling thereof; the ground must be specific, and must point out wherein and how admission of evidence would violate some recognized rule of the law of evidence. Cooksey v. State, 149 Ga. App. 572, 254 S.E.2d 892 (1979).
In order to raise on appeal contentions concerning admissibility of evidence the specific ground of objection must be made at the time the evidence is offered, and a failure to do so will be considered as a waiver. All evidence is admitted as a matter of course unless a valid ground of objection is interposed. Eiberger v. West, 165 Ga. App. 559, 301 S.E.2d 914 (1983).
Objection merely that evidence is inadmissible is equivalent to no objection.
- Objection to admission of evidence upon ground merely that the evidence is inadmissible is equivalent to assigning no reason at all for the evidence's exclusion. McDonald v. State, 21 Ga. App. 125, 94 S.E. 262 (1917).
Objection necessary although judge previously promises to exclude testimony if connection with crime not established.
- When trial judge promises that certain testimony which counsel for accused moves to exclude, on ground that the testimony does not connect the accused with the crime for which the accused is being tried, will be excluded unless such connection is shown, failure to make any subsequent motion to exclude the testimony can be treated by the court as a waiver of the objection, and failure to exclude the testimony is not cause for a new trial. Quinn v. State, 22 Ga. App. 632, 97 S.E. 84 (1918).
One cannot urge admission of evidence over objection of opposite party as ground for new trial.
- After verdict it is too late for party who upon trial made no objection to testimony which was inadmissible or of no probative value, to urge for first time, as reason why new trial should be granted that party, failure of the judge to exclude such testimony upon motion of opposite party. That party's failure to object upon the party's own part, or to join in objection of the party's opponent will be construed as a waiver of all objection to it, and as a tacit admission that the party considered the testimony beneficial to that party's cause. Wright v. State, 6 Ga. App. 770, 65 S.E. 806 (1909).
When part of evidence is admissible, objection to that part as a whole may be overruled. Dye v. State, 77 Ga. App. 517, 48 S.E.2d 742 (1948).
Obligation to point out objectionable portion of evidence.
- While superior courts may grant new trials when objection is made to specified evidence as a whole, part of which is admissible and part inadmissible, and objection does not point out objectionable portion, there is no error in admitting entire evidence. Jones v. Blackburn, 75 Ga. App. 791, 44 S.E.2d 555 (1947).
Content of Motion
Motion for new trial must state nature of objection or objections made to admission of illegal evidence. Licett v. State, 23 Ga. 57 (1857); Evans v. State, 33 Ga. 1 (1861); Reilly v. State, 82 Ga. 568, 9 S.E. 332 (1889); Brown v. State, 105 Ga. 640, 31 S.E. 557 (1898); Sable v. State, 14 Ga. App. 816, 82 S.E. 379 (1914).
Ground of motion for new trial should be complete within itself. Williamson v. Prather, 188 Ga. 545, 4 S.E.2d 140 (1939).
When motion does not clearly show admission of illegal evidence, new trial will be denied. Anderson v. State, 122 Ga. 161, 50 S.E. 46 (1905).
Must show that objection was made at time of exclusion complained of.
- Ground of motion for new trial, not indicating that evidence was illegally withheld from jury against demand of applicant, does not contain a sufficient assignment of error. Ponder v. Walker, 107 Ga. 753, 33 S.E. 690 (1899).
Ground of motion for new trial based upon admission of evidence should state objection made to evidence, and that such objection was urged at time evidence was offered; otherwise no question is raised for determination. Adkins v. State, 137 Ga. 81, 72 S.E. 897 (1911); McDonald v. State, 21 Ga. App. 125, 94 S.E. 262 (1917).
Supreme Court will not pass upon question of admissibility of evidence when ground in motion for new trial fails to show that objections for exclusion of evidence were urged before trial judge when evidence was offered. Davis v. Buie, 197 Ga. 835, 30 S.E.2d 861 (1944).
It is insufficient to show that ground of objection existed at time of making of motion. Andrews v. State, 118 Ga. 1, 43 S.E. 852 (1903); Richardson v. State, 141 Ga. 782, 82 S.E. 134 (1914).
Objection urged in motion for new trial must be same as objection made during trial. Cooner v. State, 16 Ga. App. 539, 85 S.E. 688 (1915).
Materiality of excluded evidence and object for which the evidence was offered must appear in motion for new trial. Weeks v. State, 79 Ga. 36, 3 S.E. 323 (1887).
Plaintiff in error must show that the plaintiff was harmed and prejudiced by ruling complained of.
- In order for court to grant new trial because of alleged error in introduction of evidence, upon direct exception to this court, it is incumbent upon plaintiff in error to show affirmatively in bill of exceptions, that the plaintiff was harmed and prejudiced by such ruling; and when there is no brief of evidence before this court, and it is not made to appear from bill of exceptions but that there was other evidence before the jury upon same subject, the plaintiff in error fails to show error requiring grant of a new trial in erroneous introduction of such evidence. McRae v. Boykin, 50 Ga. App. 866, 179 S.E. 535 (1935), rev'd on other grounds, 182 Ga. 252, 185 S.E. 246 (1936).
Evidentiary basis for motion under section must be set out.
- When evidence is not literally or in substance set out in motion for new trial, nor is the evidence attached as an exhibit, the motion is insufficient. Jackson v. State, 93 Ga. 190, 18 S.E. 401 (1893); Norred v. State, 127 Ga. 347, 56 S.E. 464 (1907); Garvin v. State, 76 Ga. App. 684, 47 S.E.2d 192 (1948).
Assignment of error upon admission of evidence will not be considered when evidence alleged to have been illegally admitted is not set forth literally, or the substance clearly stated, in motion for new trial and objection thereto. Pearson v. Brown, 105 Ga. 802, 31 S.E. 746 (1898); Hicks v. Mather, 107 Ga. 77, 32 S.E. 901 (1899); Georgia N. Ry. v. Hutchins & Jenkins, 119 Ga. 504, 46 S.E. 659 (1904); Hicks v. Webb, 127 Ga. 170, 56 S.E. 307 (1906); Smith v. Savannah Elec. Co., 25 Ga. App. 59, 102 S.E. 548 (1924).
Complaint in ground of motion for new trial of ruling admitting or excluding as evidence a paper, which does not set forth the paper literally or in substance in the ground itself or as an exhibit thereto properly identified, is insufficient to present any question for decision by the Supreme Court on a bill of exceptions assigning error on a judgment refusing a new trial. Williamson v. Prather, 188 Ga. 545, 4 S.E.2d 140 (1939).
Motion must state name of witness whose testimony is complained of.
- Ground of motion for new trial which complains of admission of specified testimony must state name of witness whose testimony is complained of. Adams v. State, 22 Ga. App. 252, 95 S.E. 877 (1918).
Motion must show court was advised what answer of witness, whose testimony was excluded, would be.
- Ground of motion for new trial, which assigns error because court excluded certain testimony of a witness, will not be considered, when movant has failed to show that court was advised as to what answer of witness would be. Herndon v. State, 178 Ga. 832, 174 S.E. 597 (1934), appeal dismissed, 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530 (1935).
Motion claiming testimony lacked proper foundation, which fails to disclose preliminary testimony.
- Ground for motion for new trial which complains of admission of testimony as to contradictory statements made by witness without sufficient foundation being laid therefor, but which does not disclose what preliminary testimony, in way of laying foundation, was produced, is incomplete. Miliken v. State, 8 Ga. App. 478, 69 S.E. 915 (1910).
RESEARCH REFERENCES
Am. Jur. 2d.
- 58 Am. Jur. 2d, New Trial, §§ 234, 235, 345.
C.J.S.- 23 C.J.S., Criminal Law, §§ 1948, 1949. 66 C.J.S., New Trial, § 63 et seq.
ALR.
- Statement by prosecuting attorney in presence of jury implying that defendant had made incriminating statements to him not in evidence, as ground of reversal or new trial, 52 A.L.R. 1022.
Instruction or evidence as to conspiracy where there is no charge of conspiracy in indictment or information, 66 A.L.R. 1311.
Reception of incompetent evidence in criminal case tried to court without jury as ground of reversal, 116 A.L.R. 558.
Statements, comments, or conduct of court or counsel regarding perjury, as ground for new trial or reversal in civil action or criminal prosecution other than for perjury, 127 A.L.R. 1385.
Statements by a witness after criminal trial tending to show that his testimony was perjured, as ground for new trial, 158 A.L.R. 1062.
Reference by counsel for prosecution in opening statement to matters which he does not later attempt to prove as ground for new trial, reversal, or modification, 28 A.L.R.2d 972.
Prejudicial effect of argument or remark that adversary was attempting to suppress facts, 29 A.L.R.2d 996.
Prejudicial effect of admission, in personal injury action, of evidence as to financial or domestic circumstances of plaintiff, 59 A.L.R.2d 371.
Admissibility, in prosecution for assault or similar offense involving physical violence, of extent or effect of victim's injuries, 87 A.L.R.2d 926.
Propriety and prejudicial effect of prosecutor's remarks as to victim's age, family circumstances, or the like, 50 A.L.R.3d 8.
Prosecutor's reference in opening statement to matters not provable or which he does not attempt to prove as ground for relief, 16 A.L.R.4th 810.
Search conducted by school official or teacher as violation of fourth amendment or equivalent state constitutional provision, 31 A.L.R.5th 229.