11899.

#### KILLABREW *v.*THE STATE.

1. The statement that the house was a bawdy house, made in the argument of the prosecuting attorney, in regard to the home of a female witness for the defendant, at which the cutting in question took place, afforded no valid ground of objection, in view of the evidence.

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      *(a)*There being no motion for a mistrial, the argument, even if improper and harmful to the defendant, was not ground for a new trial.

2. The ground of the motion for a new trial in regard to the refusal of a request to charge was not in proper form for consideration, it not being alleged that the requested charge was pertinent and applicable to the facts of the case.

3. Newly discovered evidence which was cumulative and impeaching did not require a new trial.

4. The verdict not being without evidence to support it, and being approved by the trial judge, this court can not disturb it.

Decided January 27, 1921.

Indictment for assault with intent to murder — conviction of stabbing; from Marion superior court — Judge Howard. September 11, 1900.

According to the evidence, the defendant cut Sid Caldwell with a knife, in the home of Ada Breedlove. It was testified for the State that Caldwell was not doing anything to the defendant when this occurred, but that they had a difficulty and " some words ” about some whisky. It was testified in behalf of the defendant that Caldwell went into Ada Breedlove’s home and was drunk and had an open razor in his hand and threatened to kill her and others,, that she told him to get out, that the defendant was requested to stop him and attempted to do so, and that he attacked the defendant and cut at him with the razor, and the defendant then cut him with a knife.

Paragraph 0 of the decision relates to the following ground of the motion for a new trial: “ Because the court erred in refusing to give in charge to the jury the following written request, the same having been submitted before the jury retired to consider their verdict, to wit: ‘ If you believe from the evidence that Sid Caldwell went into the home of-Ada Breedlove and acted in a dangerous manner, and, over her protest, continued to remain therein, refused to leave the house, and attempted violence to any one therein, she had a right to protect her home and the inmates thereof, and to that end she might use such force as was necessary to expel the intruder, and could call to her assistance any one therein; and if you believe that the defendant in good faith tried to stop the difficulty and was assaulted by Sid Caldwell with a razor, he had a right to defend himself with a knife or use such force to repel the assault.’ ”

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      *W. D. Crawford,*for plaintiff in error.

*C. F. McLaughlin, solicitor-general,*contra.

Luke, J.

1. In the trial of a criminal case, where there was evidence tending to show that the alleged offense was committed in the home of one of the defendant’s witnesses, an unmarried woman, that the house was rented by the witness, was occupied regularly by her and her unmarried sister and occasionally by other women, and was frequented by men, that the occupants had no known and visible means of support, that the witness and her sister had each given birth to a bastard child, and the witness herself swore that she did not know who was the father of her own child, the argument of the solicitor-general, to the effect that the home of the witness was a bawdy house, afforded to the accused no valid ground of objection See Park’s Penal Code, § 1053, with annotations on " Chastity, ” and § 1055, with note on “ Credibility. ”

*(a)*Moreover, no motion for a mistrial was made, and therefore the argument of the solicitor, even if illegal and prejudicial to the defendant, was not a ground for a new trial.

2. The ground of the motion for a new trial complaining of the refusal of a request to charge, not alleging, that the requested charge was pertinent and applicable to the facts of the case, is too defective to be considered.

3. The alleged newly discovered evidence, being both impeaching and cumulative, does not afford cause for a new trial. See Park’s Penal Code, § 1088, with annotations under the catchwords "Cumulative” and "Impeaching” (pp. 753, 755).

4. The verdict of guilty, rendered on conflicting testimony, is not without evidence to support it; and having been approved by the trial judge, this court is without power to disturb it.

*Judgment affirmed.*

*Broyles, C. J., arid Bloodworth, J., concur.*