Opinion
35772.
ARGUED JANUARY 21, 1980.
DECIDED FEBRUARY 6, 1980.
Murder; extraordinary motion for new trial. Jefferson Superior Court. Before Judge McMillan.
Millard C. Farmer, Joseph M. Nursey, Andrea I. Young, for appellant.
H. Reginald Thompson, District Attorney, Richard A. Malone, Assistant District Attorney, Arthur K. Bolton, Attorney General, for appellee.
Defendant appeals from denial of an extraordinary motion for new trial in which he enumerated the following errors: (1) that the trial court erred in unlawfully excluding blacks and women from the grand and traverse jury panels; (2) that the trial court erred in charging that "A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts"; and (3) that the trial court erred in failing to charge the jury that they are to consider mitigating, as well as aggravating, circumstances in determining whether to impose a death sentence and are not bound to render a death penalty upon proof of aggravating circumstances.
Defendant's death penalty was affirmed in Gaddis v. State, 239 Ga. 238 ( 236 S.E.2d 594) (1977).
Defendant's motion was properly denied because those enumerations are not proper subjects for consideration by extraordinary motion for a new trial. Goodwin v. State, 240 Ga. 605 ( 242 S.E.2d 119) (1978); Dix v. State, 244 Ga. 464 ( 260 S.E.2d 863) (1979); Blake v. State, 244 Ga. 466 ( 260 S.E.2d 876) (1979); Douthit v. State, 244 Ga. 471 ( 260 S.E.2d 875) (1979). As stated in Ga. Prac. and Proc., § 19-3 (4th ed.): "[I]n no event will the motion be good unless the movant could not, by the exercise of proper diligence, have known of the grounds thereof in time to have incorporated them into the ordinary motion for new trial."
The state's motion to consolidate this appeal with the habeas corpus appeal of Birt v. Hopper, 245 Ga. 221, post (1980) is denied.
Judgment affirmed. All the Justices concur.