
    O’Pry v. The State.
   Beck, J.

1. There being evidence authorizing the jury to find that the defendant had intentionally shot and killed the decedent, the, court did not err in charging the jury as follows: “The law presumes every homicide to be malicious until the contrary appears from circumstances of alleviation, excuse, or justification; and it is incumbent upon the prisoner to make out such circumstances to the satisfaction of the jury, unless they appear from the evidence produced against him.” Mann v. State, 124 Ga. 760 (53 S. E. 324, 4 L. R. A. (N. S.) 934).

2. A failure upon the part of the court to charge the jury upon the subject of the impeachment of witnesses, no written request for such a charge having been made, is not ground for a new trial. Nor is a failure upon the part of the court, in the absence of a timely written request, to give instructions to the jury upon the subject of positive and negative testimony a ground for the grant of a new trial.

3. The ground of the motion for a new trial, complaining of the fact that the jury were allowed to separate during the progress of the trial, is not urged or referred to in the brief of counsel for plaintiff in error, and is therefore considered as abandoned.

4. The court did not abuse its discretion in overruling the ground of the motion based upon alleged newly discovered evidence.

5. The ground of the motion complaining that the court in its instructions to the jury drew a distinction between the statement of the defendant and the evidence is without merit, as the court’s instructions upon this subject are not set forth in the motion so that the reviewing court can examine the same and decide whether the distinction drawn by the court below in its charge was a proper distinction or not, and whether the distinction drawn was “prejudicial to the cause of the defendant,” as alleged by the movant.

October 14, 1914.

Indictment for murder. Before Judge Graham. Bleckley superior court. April 24,. 1914.

Persons & Persons, for plaintiff in error. Warren Grice, attorney-general, and W. A. Wooten, solicitor-general, contra.

0. The coui't having instructed the jury that the word “felony” meant an offense punishable by death or imprisonment in the penitentiary, no further definition of that word was required, especially in the absence of a timely written request asking further instructions upon the subject.

7. The other assignments of error are without merit, and the evidence authorized the verdict.. Judgment affirmed.

All the Justices concur.  