Cary v. State

• Decision Date: 21 January 1937
• Docket Number: 25974.
• Citation: 189 S.E. 625,55 Ga.App. 167
• Parties: CARY v. STATE.
• Court: Georgia Court of Appeals

189 S.E. 625

55 Ga.App. 167

CARY v. STATE.

No. 25974.

Court of Appeals of Georgia, First Division

January 21, 1937

Error from Superior Court, Lumpkin County; B.P. Gaillard, Jr. Judge.

Charles Cary was convicted of cheating and swindling, and he brings error.

Affirmed.

SYLLABUS BY EDITORIAL STAFF.

Roy S Drennan and Claud F. Brackett, both of Atlanta, and Fred L Brewer, of Gainesville, for plaintiff in error.

Robt. McMillan, Sol. Gen., of Clarkesville, for the State.

Syllabus OPINION.

BROYLES Chief Judge.

1. The defendant was convicted of the offense of cheating and swindling, and his motion for a new trial was overruled. Upon the call of the case the defendant interposed a demurrer to the indictment, which was overruled. The bill of exceptions recites that to the judgment on the demurrer "the defendant immediately tendered exceptions pendente lite, which were promptly approved, certified, and ordered filed by the court." However, the final bill of exceptions contains no direct assignment of error upon either the exceptions pendente lite or the judgment therein complained of. The overruling of the demurrer is the first special ground of the motion for a new trial, and the only assignment of error argued in the brief of counsel for the plaintiff in error is the one based upon the overruling of the motion for a new trial. Under these circumstances, and it being well settled that a judgment upon a demurrer cannot be the basis of a ground of a motion for a new trial ( Polhill v. State, 25 Ga.App. 383, 103 S.E. 469), that judgment cannot be reviewed in this case.

2. "An assignment of error on the ground that the court erred in admitting certain evidence, without showing * * * upon what ground the objection was based, raises no question for decision. * * * In grounds 15 and 16 of the motion, error is assigned upon the admission of the evidence of a named witness, but does not show upon what ground the objection is based; and the assignment of error is therefore incomplete." Clare v. Drexler, 152 Ga. 419(5, 7), 110 S.E. 176. Under this ruling, special grounds 2 and 3 of the motion for a new trial in the instant case raise no question for the determination of this court.

3. Where it is sought to show that certain records do not contain a certain thing, the testimony of the keeper of the records, or of any other person who has read the records, that the records do not show the thing in question, is not inadmissible on the ground that the records themselves are the highest and best evidence. Hines v. Johnston, 95 Ga. 629(3), 644, 23 S.E. 470; Daniel v. Braswell, 113 Ga. 372, 373, 38 S.E. 829; Jordan v. State, 127 Ga. 278(2), 56 S.E. 422. The ruling in Griffin v. Wise, 115 Ga. 610, 612, 41 S.E. 1003, 1004 (cited by counsel for the plaintiff in error), that "books are admissible in evidence to show that they do not contain a given entry," is not in conflict with the foregoing ruling; for in that case Justice Cobb said that "it was not the only way of proving this fact," and he cited, "in this connection," Hines v. Johnston and Daniel v. Braswell, supra. Under this ruling, the testimony complained of in ground 4 of the motion was properly admitted.

4. "While noncompliance with the provisions of the...