Fair v. State, 40587

• Decision Date: 06 May 1964
• Docket Number: No. 40587,No. 2,40587,2
• Citation: 137 S.E.2d 378,109 Ga.App. 746
• Parties: Marvin FAIR v. The STATE
• Court: Georgia Court of Appeals

Page 378

137 S.E.2d 378

109 Ga.App. 746

Marvin FAIR v. The STATE.

No. 40587.

Court of Appeals of Georgia, Division No. 2.

May 6, 1964.

Rehearing Denied May 21, 1964.

Oliver, Oliver & Gunter, Jack N. Gunter, Cornelia, for plaintiff in error.

No appearance for defendant in error.

Syllabus Opinion by the Court

NICHOLS, Presiding Judge.

The defendant was indicted under two indictments, one charging him with manufacturing liquor and the other with possessing nontax-paid liquor. The cases were consolidated for the purpose of trial and after separate verdicts of guilty were rendered the defendant filed a single motion for new trial which was overruled, and he now seeks, by one bill of exceptions, to have both convictions set aside. Held:

Under the decisions of this court in Roberts v. State, 103 Ga.App. 355, 120 S.E.2d 164, and Dempsey v. State, 103 Ga.App. 354, 119 S.E.2d 298, and the cases there cited, this court is without jurisdiction to entertain the writ of error.

Writ of error dismissed.

RUSSELL, J., concurs.

HALL, Judge (concurring specially).

I reluctantly concur with the result reached in this case and in the Roberts and Dempsey cases; the reason being that the result is controlled by the decision of the Supreme Court of Georgia in Wilson v. State, 215 Ga. 775, 113 S.E.2d 607.

I disagree with the statement of this court in the Dempsey case '* * * that there is no authority of law for the defendant to bring both cases to the reviewing court by one bill of exceptions * * *.' Ga.L.1957, pp. 224, 234 (Code Ann. § 6--919) allows joint motions for new trial and joint bills of exception in those instances where two cases were consolidated for purposes of trial. 'This authorizes a procedure which upon numerous occasions has been refused by decisions of this court and of the Supreme Court. Its beneficent purpose must not be negated by the application of obsolescent decisions.' Life Ins. Co. of Georgia v. Blanton, 109 Ga.App. 116, 118, 135 S.E.2d 437; Scales v. Peevy, 103 Ga.App. 42, 118 S.E.2d 193. A distinguished member of the bar, Charles J. Bloch, in an article on the 1957 law, stated 'In these 1957 amendments to the rules of practice and procedure, the bar of Georgia, with the cooperation of a committee from the Supreme Court, are endeavoring, once more, to rid appellate practice of meaningless technicalities. We fervently hope that they will be construed in the spirit which they have been offered, that being 'the letter killeth, but the spirit giveth life.'' 19 Ga.Bar J. 395, 412.

The 1957 Act is similar in nature to Ga.L.1953, Nov.Sess., p. 440, in that both relate to the quasi-rule-making power of the Supreme Court of Georgia under Ga.L.1945, p. 145. The 1953 law authorizes the use of a motion for a judgment notwithstanding the verdict. However, the Supreme Court held in Wilson v. State, 215 Ga. 775, 113 S.E.2d 607, supra that 'This rule, adopted by this court, and approved by the General Assembly in 1953 * * *, relates solely to pleading, procedure, and practice in the trial of...