Gary v. State
| Docket Number | 2,255. |
| Decision Date | 25 February 1910 |
| Parties | GARY v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The refusal to arrest a judgment not being a proper ground for a motion for new trial, but a matter for direct exception, this court cannot consider an assignment of error thereon in a bill of exceptions in a criminal case, presented to the judge more than 20 days after the rendition of the judgment overruling the motion to arrest judgment.
Where primary evidence is shown to be inaccessible, secondary evidence may be resorted to. Where, on the trial of a criminal case, original money orders purchased from an express company are shown to be in the possession of the defendant, or to have been forwarded to the headquarters of the express company in another state, the original orders are inaccessible, and the stubs kept in the local office of the express company, and containing copy memoranda of such original orders, are admissible in lieu thereof.
The circumstance that one purchases express money orders payable to a dealer in intoxicating liquors in another state, and shortly thereafter receives a package by express from the city of the payee's residence, is relevant for the purpose of showing that the purchaser of the money orders has purchased intoxicating liquors; and the fact that one has within a short time purchased a large number of such money orders, and in return received a large number of packages while not of itself sufficient to authorize the inference that the presumed purchaser of intoxicating liquors was also a seller of such liquors in violation of law, is relevant, on the trial of one accused of the unlawful sale of intoxicants as corroborative of other evidence tending to show the guilt of the accused. Circumstantial evidence may be relevant, even though of very slight probative value.
The verdict was not supported by any evidence, and for that reason the court erred in not granting a new trial.
(Additional Syllabus by Editorial Staff.)
In so far as it is not a ground for a motion for new trial judgment upon motion in arrest of judgment stands upon the same footing as a ruling upon demurrer, and where error therein in a criminal case is assigned only in the main bill of exceptions, such bill must be tendered and certified within 20 days from the date of the judgment which is the subject of the special exception.
Verdicts are not to be set aside upon frivolous grounds, but must be upheld, if possible, and in determining their meaning the language employed must be given a reasonable intendment, and a verdict in a prosecution for violating the prohibition law, finding accused "guilty of keeping whisky in a public place of business," will be deemed sufficient as finding him guilty of keeping whisky at a public place; the words "of business" being treated as surplusage.
Error from City Court of Dawson; M. C. Edwards, Judge.
John Gary was convicted of violating the prohibition law, and brings error. Reversed.
L. C. Hoyl and H. A. Wilkinson, for plaintiff in error.
M. J. Yeomans, Sol., for the State.
John Gary was tried for a violation of the prohibition law (Acts 1907, p. 81). The accusation charged that he "sold and bartered for a valuable consideration, directly and indirectly, and gave away to induce trade at a place of business, and did keep on hand at his place of business, and did keep and furnish at a public place, alcoholic, spirituous, malt, and intoxicating liquors and intoxicating bitters, contrary to the laws of said state, the good order, peace, and dignity thereof." In other words, the state charged that the defendant violated the prohibition law in more than one way. Each of the acts penalized constitutes a separate offense, though, as all are misdemeanors, they may be joined in a single count. The jury rendered a verdict finding the defendant "guilty of keeping whisky in a public place of business." The defendant filed a motion in arrest of judgment, upon the grounds (1) that the verdict does not find the defendant guilty of any crime or offense for which judgment or sentence may be pronounced against him; (2) that the verdict is a special verdict, and not a general verdict, and therefore is illegal, and no judgment can be pronounced against him. The court refused to arrest the judgment. Thereupon the defendant filed a motion for a new trial, and, upon the overruling of the motion for a new trial, presented the present bill of exceptions, in which error is assigned upon the refusal of the court to arrest the judgment.
1. The exception to the judgment overruling the motion in arrest of judgment cannot be considered. The judgment overruling that motion was rendered on August 10th, and the bill of exceptions was presented October 27th, more than 20 days after the rendition of the judgment complained of. The refusal to arrest judgment is not a proper ground for a motion for new trial, but a matter for direct exception; and if such exception in a criminal case is not preserved by filing exceptions pendente lite, but is made in a bill of exceptions which brings the whole case up for review, the bill of exceptions must be presented within 20 days from the date of the judgment overruling the motion in arrest of judgment. In Watson v. State, 64 Ga. 61, it was held that the refusal to arrest judgment might be excepted to in the bill of exceptions which brought up the whole case for review, although the exception could not be taken by motion for new trial; and the same ruling was made in Stokes v State, 84 Ga. 258, 10 S.E. 740 (6). But in Gaines v. State, 108 Ga. 772, 33 S.E. 632, it was distinctly ruled that in a criminal case the reviewing court could not consider an assignment of error on a refusal to arrest judgment, made in a bill of exceptions presented to the judge more than 20 days after the rendition of the judgment complained of. See, also, Wheeler v. State, 4 Ga.App. 325, 61 S.E....
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