The plaintiff’ in error was indicted for breaking open a car on the Georgia railroad and stealing therefrom certain goods belonging to Silvey & Company, and was found guilty. He moved for a new trial upon the general grounds that the verdict was contrary to law and to the evidence; and upon the further ground that the court refused to rule out certain testimony. The motion for a new trial was overruled, and he excepted.
1. The record does not show at what time in the proceedings the defendant moved to rule out this testimony ; and we think it should affirmatively appear from the record that the motion to rule out the testimony was made before the conclusion of the case to the jury. The defendant could not stand hy and speculate and take his chances upon it, and after the jury had been charged with the case, move then to rule it out. We therefore cannot consider this ground. To this effect see Grady vs. The State, 11 Ga. 256, and authorities there cited.
2. We think the verdict of the jury was authorized by the evidence.
Judgment affirmed.