The opinion
Ed. F. McFaddin, Associate Justice, (concurring),
I concur in the affirmance of this case for the reasons herein stated.
After the jury brought in the verdict against appellant, Carter, his counsel filed a motion for new trial; and the entire motion, omitting only caption and signature, is as follows:
“MOTION FOR NEW TRIAL
“Comes the defendant, James E. Carter, and states and alleges:
I.
“That the Prosecuting Attorney asked for a continuance of the trial of Henry Glenn, Louis Coliron and Cornell Sanders, a colored man, because the Sheriff was an important member of the investigation of this entire case and that said defendant, James E. Carter, is firmly of the opinion that if said Sheriff testifies that some of the testimony of said Sheriff James Steed will be in his favor and if the jury could have heard his testimony their verdict would have been for acquittal; that said defendant, James E. Carter, requests a new trial because the trial jury should have the benefit of the testimony of the Sheriff of this County, James Steed, and if trial court had enough belief in the motion of Prosecuting Attorney that Sheriff James Steed’s testimony was important enough to continue the other cases involved, then said Judge should grant a new trial and hold the trial in abeyance until said Sheriff is able to come to the witness stand; that the defense attorney consistently insisted upon the Prosecuting Attorney placing the Deputy Sheriffs, Bill Dyer and James Bowers, on the witness stand and in his opening statement he challenged the Prosecuting Attorney to do this and was refused. The defense attorney is definitely of the opinion that if any jury could hear the testimony of Mr. Bill Dyer or Mr. James Bowers or the Sheriff James Steed on cross examination that they would find the defendant ‘not guilty’ and the Judge should, therefore, grant the defendant a new trial.
“Wherefore, defendant prays that, due to the fact that the Prosecuting Attorney asked for a continuance on all other involved cases and all other persons being tried because the Sheriff could not be there and the Trial Judge gave that continuance, he be granted a new trial when the Sheriff will be able to testify and so that Sheriff James Steed and Deputies Bill Dyer and James Bowers can testify before the jury and, if the Trial Judge refuses this motion, he is not giving justice to the defendant because he granted the Prosecuting Attorney’s motion for a continuance upon the same grounds, over the objection of defense attorney.” . ,
It is my view that when a pleading is in writing, as was this motion for new trial, any remarks, made in oral argument by Carter’s attorney in the presentation of the motion cannot be seized on as an additional assignment to the motion for new trial. So I take the position that there was no assignment in the motion for new trial about the absence of corroboration and that point cannot now be raised.
Furthermore, in Instruction No. 5, the Court told the jury that Carter could not be convicted on the uncorroborated evidence of an accomplice; and there is evidence in the record going to the matter of corroboration. The witness, Floyd Harper, testified to seeing where cattle had been slaughtered and the ears and feet left, and the mark on one of the ears showed it was Harper’s cattle. The witness, Joe Swain, testified that he could see where cattle had been killed on the side of the road, and that he saw a yellow packing company truck along the same road. The witness, Virgil McCutcheon, testified that on Sunday morning he went down the Peeler Bend Road to the slaughterhouse and there was a trail of blood in the middle of the Peeler Bend Road for a mile on out to the slaughterhouse. The slaughterhouse was operated by Jim Carter.
Without dwelling any more on the matter, I reach the conclusion that the judgment should be affirmed.