Gamble v. State

• Decision Date: 17 July 1901
• Citation: 39 S.E. 301,113 Ga. 701
• Parties: GAMBLE v. STATE. LEE v. STATE. McMICHAEL v. STATE. SEARCY v. STATE. WILLIAMS v. STATE. WILCOX v. STATE.
• Court: Georgia Supreme Court

39 S.E. 301

113 Ga. 701

GAMBLE v. STATE.

LEE v. STATE.

McMICHAEL v. STATE.

SEARCY v. STATE.

WILLIAMS v. STATE.

WILCOX v. STATE.

Supreme Court of Georgia

July 17, 1901

Syllabus by the Court.

1. This court cannot deal with the assignments of error made in an amendment to a motion for a new trial which has upon it an entry to the effect that it has been allowed by the trial judge, with nothing else to indicate an approval of its grounds.

2. Where persons are accused of an affray, and there is no evidence that the fighting occurred at a public place, a verdict of guilty is contrary to law.

Error from criminal court of Atlanta; A. E. Calhoun, Judge.

Son Gamble, John Lee, J. D. McMichael, Cynthia Searcy, George Williams, and Annie Wilcox were each severally accused and convicted of an affray, and bring error. Reversed in each case.

F. R Walker, A. R. Bryan, and S.C. Crane, for plaintiff in error.

E. R Black, for the State.

SIMMONS C.J.

Six persons were separately accused of an affray alleged to have been committed at a certain time and place in Fulton county, Ga. The cases were tried together, and the defendant in each case found guilty. Each defendant moved for a new trial upon the grounds that the verdict was contrary to law and evidence, and without evidence to support it. Subsequently five of these motions were amended by adding special grounds. The court overruled all of the motions for new trial, and each movant excepted to the order overruling his motion. The cases were argued at the same time in this court, and will be considered together.

1. In each case in which an amendment was made to the original motion for new trial, the amendment was "allowed" by the court and ordered filed, but further than this there is nothing in the record or in the bill of exceptions to indicate an approval of the grounds of the amendment. These special grounds are therefore not sufficiently verified to authorize this court to deal with them. Merritt v. Merritt (Ga.) 38 S.E. 973.

2. From the evidence in the records it appears that certain officers of Fulton county, learning that there would be a dance at a certain place in the county, went to that place. As they approached the house, they heard several pistol shots, and saw the man who had done the shooting run off. They also saw five men (among them four of the defendants) engaged in a general fight. These men were placed under arrest. Then another of the defendants had a fight with a certain person in the house and they were arrested. The remaining defendant then became engaged in a fight with still another person, and they also were placed under arrest. This fighting was attended with much noise and disorder. It took place in the front room and on the front porch of a house which had been rented for the occasion. From the briefs of evidence in some of the cases, it would appear that the house was a vacant one; from those in the others, that the house was composed of two rooms, and that the back room was occupied by a negro family. The house was in the country, was one of a row of negro houses, and was about 200 yards from any other residence. It was "near" a public road, which was in front of it; but what was the distance from the road, and whether the defendants' fighting could be seen or heard from the road, the evidence does not disclose. The Code section under which the defendants were accused defines an affray as "the fighting of two or more persons in some public place, to the terror of the citizens and disturbance of the public tranquillity." Pen. Code, § 355. Thus, in this state, as at common law, there cannot be a conviction for an affray unless the fighting occurs in a public place. See 4 Bl. Comm. 145; 2 Bish. New Cr. Law, §§ 1, 2; Bish. St Crimes (3d Ed.) § 298; 2 McClain, Cr. Law, §§ 1006, 1008; State v. Heflin, 8 Humph. 84. Unless the defendants were fighting in a public place, their convictions were illegal. The house in which they fought appears to have been a private one, rented by the defendants. There is no suggestion in the evidence that it possessed at ordinary times any of the elements which characterize a public place. It is true, it was near a public road, and that a public road is, prima facie at least, a public place, and may give that character to places in sight and hearing from the road. State v. Moriarty, 74 Ind. 103; Carwile v. State, 35 Ala. 392; Henderson v. State, 59 Ala. 89; Ford v. State (Ala.) 26 So. 503. It is also true that a road which, though not a regular public highway, is used and traveled, is a public place. Mills v. State, 20 Ala. 86. But the evidence in the present case fails to show how "near" or how far it was from the road to the house, or that the defendants could be seen or heard from the road. So far as appears, the house may have been quite a distance from the road, and so situated that the defendants could not have been...