Holzmeister v. State
| Decision Date | 14 October 1980 |
| Docket Number | 60573,Nos. 60572,s. 60572 |
| Parties | HOLZMEISTER v. The STATE. PIPER v. The STATE. |
| Court | Georgia Court of Appeals |
Jerry M. Daniel, Waynesboro, for appellants.
Marion deVeaux Cotten, Sol., Waynesboro, for appellee.
The defendants appeal their conviction of the offenses of hunting deer at night with the aid of lights, and from a vehicle, in violation of Code Ann. §§ 45-502 and 45-511 (Ga.L. 1977, pp. 396, 448, 453). These are misdemeanor offenses. Code Ann. § 45-216 (Ga.L. 1977, pp. 396, 421). The single enumeration of error alleges the trial judge's failure to appoint an official court reporter for the State Court, and the holding of their trial without the presence or availability of such reporter, denied them a right granted by law. Held :
1. As there was no reporter, there is no transcript. Defendants' direction to the Clerk to forward "all transcripts of evidence and proceedings" is unavailing as none exist. Where such proceedings occur, which have not been transcribed, the defendant may move for an appropriate order pursuant to Code Ann. § 6-805. Rutledge v. State, 245 Ga. 768, 772, 267 S.E.2d 199. "The burden is on him who asserts error to show it affirmatively by the record" (Roach v. State, 221 Ga. 783(4), 147 S.E.2d 299), and this cannot be done "by evidentiary assertions ... in enumerations and briefs." Redwing Carriers, Inc. v. Knight, 143 Ga.App. 668, 674, 239 S.E.2d 686. " 'The brief cannot serve in the place of the record or the transcript for the purpose of demonstrating error or for supporting a claim of error.' " Jahncke Service Inc. v. Dept. of Trans., 134 Ga.App. 106(1), 213 S.E.2d 150. However, in instances where the transcript is unavailable and such facts as are necessary for disposition are stated in the brief, and the State concedes such statement is substantially correct, we are permitted to reach a decision upon the agreed upon facts. See Rule 15 (b)(1) (Code Ann. § 24-3615(b)(1)).
2. Defendants' statement of facts, conceded to be "substantially correct" by the State, show: (Emphasis supplied.)
Viewing the facts, as stated by the defendants, and in the light most favorable to upholding the...
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Westbrook v. State
..."The evidentiary assertions in defendant's brief provide no factual predicate for a finding in this regard. See Holzmeister v. State, 156 Ga.App. 94(1) (274 SE2d 109) (1980); McFarland v. State, 134 Ga.App. 470(1) (214 SE2d 721) (1975)." Strickland v. State, 184 Ga.App. 185, 186(2), 187, 36......
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Whitt v. State, A94A1501
...courts are guided by the record and cannot rely on extra-judicial statements contained in arguments of counsel. Holzmeister v. State, 156 Ga.App. 94(1), 274 S.E.2d 109; Butts v. State, 149 Ga.App. 492, 493(3), 254 S.E.2d 719. Consequently, the issue raised in this enumeration is " 'deemed a......
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Collins v. State, A04A0362.
...jury from doing so"). 16. State v. Heggs, 252 Ga.App. 865, 866, 558 S.E.2d 41 (2001). 17. (Punctuation omitted.) Holzmeister v. State, 156 Ga.App. 94(1), 274 S.E.2d 109 (1980). 18. (Punctuation omitted.) Williams v. State, 253 Ga.App. 10, 557 S.E.2d 473 (2001); see also Keith v. State, 218 ......
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Pike v. State
...guided by the record and cannot rely on extra-judicial statements contained in briefs or arguments of counsel. Holzmeister v. State, 156 Ga.App. 94(1), 274 S.E.2d 109 (1980); Butts v. State, 149 Ga.App. 492, 493(3), 254 S.E.2d 719 (1979). Had the state offered any evidence at trial that the......