Jones v. State

• Decision Date: 22 March 1897
• Parties: JONES v. STATE.
• Court: Georgia Supreme Court

28 S.E. 396

100 Ga. 579

JONES v. STATE.

Supreme Court of Georgia

March 22, 1897

Syllabus by the Court.

1. Where, in a criminal case, it appears by the certificate of the presiding judge to the bill of exceptions that the same was tendered to him within 20 days from the date of the overruling of the motion for new trial, such certificate is conclusive; and this court cannot consider a second certificate, nor any aliunde testimony showing contrary to the recital in the body of the bill, duly certified.

2. Where, in such a case, a bill of exceptions is presented to the trial judge within the time prescribed by law, but not certified by him until 21 days after the overruling of the motion for new trial, a motion to dismiss the writ of error since the passage of the act approved December 24, 1896, will not be granted by this court. (a) Under the terms of that act, delay for any length of time on the part of the judge to sign and certify a bill of exceptions tendered him in time unless such delay beyond the time fixed for signing and certifying was occasioned by some act of the plaintiff in error or his counsel, is not now cause for dismissal of the bill of exceptions.

3. The evidence is not sufficient to support the verdict, and the court erred in not granting the motion for new trial.

Error from superior court, Bartow county; A. W. Fite, Judge.

Allen Jones was convicted of selling spirituous and intoxicating liquors, and brings error. Reversed.

p>Page J. W. Harris, Jr., for plaintiff in error.

Sam P Maddox, Sol. Gen., and A. S. Johnson, for the State.

LITTLE J.

The official report states the facts.

1. When this case was called in its order, the state moved to dismiss the bill of exceptions, because the same was not certified by the judge within the time prescribed by law, and presented a second certificate from the judge before whom the case was tried, to the effect that the case was tried at the January term, 1897, of Bartow superior court, on the 19th day of January, which court was in session until the 6th day of February; that he was absent from home until Saturday, the 13th, holding court; and that the bill of exceptions was tendered to him on the 12th of February, and signed on that day. There was also submitted an affidavit from J. W. Harris Jr., in relation to the mailing and service of the bill of exceptions. It appears from the record in the case that the bill of exceptions was certified as true by the judge on the 12th day of February, 1897, and that the following recital is made in the body of the bill of exceptions: "And now within twenty days from the overruling of said motion for new trial. Allen Jones presents this, his bill of exceptions, and prays that the same may be signed and certified." Because of this recital therein, we refused to dismiss the bill of exceptions. There can, of course, be no question as to the correctness of the second certificate, nor of the affidavit offered; but this court has no power to consider a second certificate. The certificate to the bill of exceptions is the writ of error. Code, § 4252. It was ruled in the case of Perry v. Railroad Co., 74 Ga. 411, that, after a judge has signed a bill of exceptions, he has exhausted his statutory power with respect thereto, and he cannot subsequently alter or recertify the same; and to the same effect is the case of Marshall v. Livingston, 77 Ga. 21; and in the case of Scott v. Railroad Co., 77 Ga. 453, it was held that if one certificate be made, whether it certifies all or a part of the bill of exceptions, the bill of exceptions is a finished document, a...