Glover v. State
| Decision Date | 09 April 1907 |
| Citation | 57 S.E. 101,128 Ga. 1 |
| Parties | GLOVER v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Affidavits relating to a ground of a motion for a new trial, which are referred to therein as being attached to the motion as exhibits, and which are actually so attached, and which were filed with the motion as a part thereof, are a part of the record in the case, and, when transmitted under the certificate of the clerk, will be considered by this court in the determination of the case.
Affidavits relating to a ground of a motion for a new trial, which are not referred to therein, nor attached to the motion as an exhibit, nor filed with the motion as a part thereof, but each separately filed, cannot be considered by this court when transmitted as a part of the record, even though it appear, from a statement of the judge on each affidavit, that the same was used on the hearing of the motion for a new trial, and each affidavit was actually filed in office. This rule applies to affidavits offered by the movant as well as those offered by the respondent.
When affidavits used on the hearing of a motion for a new trial are not made a part of the record in the case, either by being embodied in an approved brief of the evidence, or otherwise, before the bill of exceptions is certified, the judge has no authority, by an order passed after the bill of exceptions is certified, to declare such affidavits to be a part of the record. Even if a simple order of the judge would make such affidavits a part of the record, the order must be passed before the bill of exceptions is certified.
When it appears that a juror who was sworn and impaneled in the trial of a murder case had stated that if he was on the jury he would hang the accused, and the only matter before this court in rebuttal of the charge made against the juror is a statement by the judge, in his order overruling the motion for a new trial, that he knows the juror personally and by reputation, and that he is worthy of belief, a prima facie case of incompetency is not overcome, and a new trial should have been granted.
Error from Superior Court, Richmond County; H. C. Hammond, Judge.
A. P Glover was convicted of murder, and brings error. Reversed.
A. L Franklin and C. A. Picquet, for plaintiff in error.
Boykin & Wright, J. S. Reynolds, Sol. Gen., and John C. Hart, Atty Gen., for the State.
COBB P.J. (after stating the facts).
1. 2. It is contended by counsel for the plaintiff in error that the affidavits used by the state on the hearing of the motion for a new trial, to rebut the evidence contained in the affidavits attached to the motion, cannot be considered by this court, for the reason that they are no part of the record in the case, and, although actually filed in the clerk's office, the clerk had no authority to certify and transmit them to this court as a part of the record, either originally or at any other time. In Warnock v. Kilpatrick, 70 Ga. 730, it was held that when a ground of a motion for a new trial was based upon newly discovered evidence, and affidavits are used in connection with the hearing of the motion, if the case be brought to the Supreme Court, such affidavits should be embodied in the bill of exceptions, as they do not form a part of the record; and that a failure to embrace the same in the bill of exceptions would work a dismissal of the writ of error. In McDonald v. State, 72 Ga. 55, it was held that affidavits used on the hearing of a motion for a new trial must be properly authenticated, and that a mere order that all affidavits so used be filed in the clerk's office, and the appearance in the record, of what purports to be copies of the affidavits, with entries of the filing thereon, is not sufficient, and the ground of a motion dependent upon such affidavits will not be considered. In Crockett v. McLendon, 73 Ga. 85, there is a statement, in one of the headnotes, to the effect that affidavits relating to a ground of a motion for a new trial, and referred to therein, identified by the signature of the judge, and thus appearing in the record, would be considered by the Supreme Court in passing upon the ground of the motion.
It is to be noted, however, in that case, that what is said is merely obiter, for the reason that the court held that it was not necessary to look to the affidavits in order to establish the fact which they were offered to prove; such facts having been admitted in open court, as appears from the certificate of the judge. The cases above referred to are all that we have been able to find relating to the subject of proper authentication of affidavits used in connection with a ground of a motion for a new trial.
There are numerous rulings in reference to the proper method of authenticating affidavits used on the hearing of an application for an interlocutory injunction and hearings of a similar nature. The settled rule in reference to the authentication of affidavits in hearings of this character is that they must be set forth in the bill of exceptions, or attached thereto as exhibits properly identified by the judge, or embraced in an approved brief of the evidence. For the more recent rulings on this subject, see Eubank v Eastman, 120 Ga. 1048, 48 S.E. 426, and Roberts v. Heinsohn, 123 Ga. 685, 51 S.E. 589. In Cohen v. Myers, 42 Ga. 46, which was an application to revoke an order appointing a receiver, it was held that, if affidavits used in the hearing of an equity case are part of the record, they need not be copied in the bill of exceptions. The affidavits for the plaintiff were attached to the bill and treated as a part of the record. No reference was made to the affidavits of the defendant in the bill of exceptions, other than that the judge, in the order complained of, recited that judgment was rendered by him after consideration of the facts set forth in the bill, answer, and affidavits. It was held that this was sufficient to authorize this court to consider all the affidavits. This decision does not seem to be in harmony with the other decisions on the subject. If the rule in reference to hearings in equity cases is followed, of course, the affidavits...
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