xisted inGober and Siegel. Rather, this case involves a correct charge regarding general intent, a correct charge regarding intent for a charge of aggravated assault, and an incorrect charge regarding the specific intent necessary for a felony murder conviction. Under this scenario, it is entirely possible that a jury could believe that while intent generally is a necessary element to a crime charged, an isolated exception to that rule exists where felony murder is concerned. Obviously, a jury that understood its charge in this manner would be incapable of rendering a fair verdict as to the felony murder charge, and a new trial should be ordered. See also Reece v. State, 210 Ga. 578, 579 ( 82 S.E.2d 10) (1954), rev'd on other grounds, 350 U.S. 85 ( 76 S.C. 167, 100 LE 77 (1955) (a correct charge on criminal insanity and a subsequent incorrect charge on criminal responsibility for those adjudged insane were inconsistent and thus likely to create juror confusion, requiring new trial); Ledford v. State, 215 Ga. 799, 806 ( 113 S.E.2d 628) (1960) (same); Smith v. State, 454 F.2d 572, 578 (5th Cir. 1971) (Georgia's previous charge on alibi defense was inconsistent with the tenant that a criminal defendant carries no burden of proof whatsoever, and thus was likely to cause juror confusion, requiring a new trial). Finally, I note that the authority cited by the majority does not support its ruling.

Reed v. State, 197 Ga. 418 (6) ( 29 S.E.2d 505)." Ledford v. State, 215 Ga. 799, 805 (6) ( 113 S.E.2d 628) (1960). (b) In order to identify the handwriting on the Alabama motel receipt as defendant's, the state procured three letters written by defendant from prison.

This remark did not intimate in any way that the appellant had made a confession or admission, but was merely a proper statement of what the state hoped to prove. Ledford v. State, 215 Ga. 799, 800 ( 113 S.E.2d 628); Chambers v. State, 127 Ga. App. 196 ( 192 S.E.2d 916). It is not a contention on appeal that the statements of the appellant were, in fact, involuntary or improperly admitted to trial. There is no merit to this enumeration of error.

Accordingly, in the absence of a timely request, it was not error for the court to fail to charge on circumstantial evidence as provided in Code § 38-109. Bowen v. State, 181 Ga. 427, 429 ( 182 S.E. 510); Harris v. State, 207 Ga. 287 (2) ( 61 S.E.2d 135); Gentry v. State, 208 Ga. 370 (2) ( 66 S.E.2d 913); McGruder v. State, 213 Ga. 259 (4) ( 98 S.E.2d 564); Ledford v. State, 215 Ga. 799 (10) ( 113 S.E.2d 628); Fields v. State, 221 Ga. 307 (3) ( 144 S.E.2d 339); Walker v. State, 226 Ga. 292 (11) ( 174 S.E.2d 440); Bryantv. State, 229 Ga. 60 (1) ( 189 S.E.2d 435). Appellant's counsel in a supplementary brief concedes this conclusion is correct under Georgia law. 6. On our own motion we have reviewed this case thoroughly and minutely.

See Justice v. State, 213 Ga. 166 ( 97 S.E.2d 569), and the cases there cited which include Poultryland, Inc. v. Anderson, 200 Ga. 549, 562 ( 37 S.E.2d 785), where it was said by a full bench that "the rule as fixed by the Code of 1863 ( § 3787) and continued in all subsequent Codes, as to the sequestration of witnesses, conferred upon the party making such request an absolute right, subject only to the sound discretion of the trial judge in permitting one or more witnesses to remain in the courtroom to advise the opposite party in the presentation of his case." And what we have here held is also sustained by the decisions of this court in May v. State, 90 Ga. 793 (2) ( 17 S.E. 108); Ledford v. State, 215 Ga. 799 (3) ( 113 S.E.2d 628); Cornett v. State, 218 Ga. 405 (2) ( 128 S.E.2d 317); and Dye v. State, 220 Ga. 113 (2) ( 137 S.E.2d 465). 3. During the trial the State offered as evidence a statement signed by Charles Harper and James Evans, co-indictees with the defendant, in which they admitted their participation in this robbery and several others but in which they refused to name other persons who participated therein.

2. Exceptions to conclusions and rulings by the trial judge upon preliminary and collateral issues, such as a plea in abatement, challenge to the array, and motion to quash the indictment, cannot properly be made grounds of a motion for new trial, but are proper assignments of error in the bill of exceptions. Herndon v. State, 178 Ga. 832 (1) ( 174 S.E. 597); See Herndon v. Georgia, 295 U.S. 441 (2) ( 55 S.C. 794, 79 LE 1530); Frady v. State, 212 Ga. 84 (1) ( 90 S.E.2d 664); Hargroves v. State, 179 Ga. 722 (1) ( 177 S.E. 561); Mattox v. State, 181 Ga. 361 (1) ( 182 S.E. 11); Ledford v. State, 215 Ga. 799 (1) ( 113 S.E.2d 628); Ferguson v. State, 219 Ga. 33, 35 (4) ( 131 S.E.2d 538). The reason for the rule is sound and logical, for if the plea in abatement, the challenge to the array, or the motion to quash the indictment are valid, the indictment is null and void and all future proceedings would be nugatory.

However, where the language of an incriminating statement or confession made by the accused indicates that the accused has committed another separate offense, a motion for mistrial based upon the admission of such incriminatory statement or confession is properly denied. Reed v. State, 197 Ga. 418 (6) ( 29 S.E.2d 505); Calhoun v. State, 210 Ga. 180 (2) ( 78 S.E.2d 425); Ledford v. State, 215 Ga. 799 (6) ( 113 S.E.2d 628). 3.

The only assignment of error in the bill of exceptions is to the judgment overruling the defendant's motion for new trial. Since a ruling on a demurrer to an indictment cannot be reviewed as to its correctness by way of an exception to a denial of a motion for new trial, this question is not now before this court for review. Ledford v. State, 215 Ga. 799 (1) ( 113 S.E.2d 628) and Seymour v. State, 210 Ga. 21 (1) ( 77 S.E.2d 519). 2.

The mere fact that defendant may have been prejudiced by the totality of the circumstances surrounding the making of the statements is of no consequence. The circumstances were admissible whether or not they introduced evidence of other crimes. See Ledford v. State, 215 Ga. 799, 805 ( 113 S.E.2d 628); Laney v. State, 159 Ga. App. 609, 610 (4) ( 284 S.E.2d 114). In passing, we note that defendant himself made use of the circumstances surrounding his statements, testifying that he only made the statements in anger and out of spite.

[Cits.]'" Ledford v. State, 215 Ga. 799, 805 ( 113 S.E.2d 628). Accord Laney v. State, 159 Ga. App. 609, 610 (4) ( 248 S.E.2d 114). Defendant's fourth enumeration of error is without merit. 5. Defendant contends the trial court erred in refusing to permit a witness to testify concerning the contents of a writing which was "lost."