Collier v. State

• Decision Date: 26 March 1902
• Citation: 41 S.E. 261,115 Ga. 17
• Court: Georgia Supreme Court
• Parties: COLLIER v. STATE.

41 S.E. 261

115 Ga. 17

COLLIER

v.STATE.

Supreme Court of Georgia.

March 26, 1902.

CRIMINAL LAW—NEW TRIAL—MOTION—FILING IN VACATION. There being no law authorizing the filing of a motion for a new trial in vacation, such a motion thus filed, even though based upon meritorious grounds, and though, upon the facts recited therein, it should, if filed in term, be properly dealt with as an "extraordinary motion, " is in law a mere nullity. It is therefore erroneous for a judge of a superior court to take jurisdiction of such a motion; and when he does so, and undertakes to decide it upon its merits, the judgment will be reversed. (Syllabus by the Court.)

Error from superior court, Whitfield county; A. W. Fite, Judge.

Bill Collier was convicted of crime, and brings error. Reversed.

W. C. Martin and W. M. Jones, for plaintiff in error.

Sam P. Maddox, Sol. Gen., and Boykin Wright, Atty. Gen., for the State.

FISH, J. From the record in this case we gather the following facts: At a special term of the superior court of Whitfield county, held on the 19th and 20th days of November, 1901, Bill Collier was indicted for rape, charged to have been committed in that county on the 15th day of November, 1901. His trial was had during the two days named. On the last-mentioned day he was found guilty, and immediately sentenced to be hung. The court was adjourned within 10 or 15 minutes after sentence was pronounced. Subsequently a motion for a new trial was made, which recites that the movant comes "on this 3d day of December, 1901, " and moves the court to set aside the verdict and grant a new trial. The grounds set out in this motion are the general ones. It does not appear that this motion was tendered to the judge or acted upon by him until the 12th of December, 1901, on which day the motion wasamended by the addition of several special grounds. Appended to the motion is an order approving the grounds of both the original and amended motion, and calling on the solicitor general to show cause at Dalton, on the 18th of December, 1901, why the motion should not be granted. This order was signed by the judge on the 12th day of December, in vacation. The motion was partially heard on the 18th, and then, by written order, continued until the 23d of December, 1901, on which last day it was by written order overruled. It will be seen that everything connected with the motion for a new trial took place during vacation; that no motion for a new trial was made in term, and no order...