Kent v. State

• Decision Date: 25 April 1916
• Docket Number: 7266.
• Citation: 88 S.E. 913,18 Ga.App. 30
• Parties: KENT v. STATE.
• Court: Georgia Court of Appeals

88 S.E. 913

18 Ga.App. 30

KENT v. STATE.

No. 7266.

Court of Appeals of Georgia

April 25, 1916

Rehearing Denied May 26, 1916.

Syllabus by the Court.

Exceptions pendente lite cannot be considered unless error is assigned thereon, either in the main bill of exceptions or in the reviewing court by counsel for plaintiff in error before argument begins. Shaw v. Jones, 133 Ga. 446 (1), 66 S.E. 240. Under the foregoing ruling the judgment on the demurrer in this case cannot be considered by this court.

(a) This ruling applies where a direct bill of exceptions was brought to this court on a judgment overruling a demurrer to the indictment, and where the writ of error was dismissed on the ground that a motion for a new trial in the case was pending in the lower court, and it was ordered that the official copy of the bill of exceptions of file in the office of the clerk of the trial court should operate as exceptions pendente lite, and where in the new bill of exceptions brought to this court error was not assigned in the main bill of exceptions on the exceptions pendente lite as allowed by this court, and no error was assigned thereon by counsel for plaintiff in error before the argument began.

The court did not err in sustaining the demurrer to the plea in abatement and in striking the plea or in striking the challenge to the array.

Under section 3101 of the Civil Code 1910, an ordinary of a county can legally charge $5, and no more, for his entire services in any lunacy case tried before him; and the court did not err in so charging in this case.

The court did not err in signing an order requiring the defendant, who was ordinary of his county, to point out to the solicitor general certain public records in the ordinary's office which were desired by the solicitor general as evidence in the case, and which were material and relevant to the issue. Russell v. State, 57 Ga. 421. In that case a justice of the peace who was being tried for malpractice in office was required by the court to produce his docket and official papers in a certain case, to be used as evidence against him; and Chief Justice Warner, speaking for the Supreme Court, said: "There was no error in requiring the defendant to produce his official docket and the official papers. * * * Requiring a defendant to produce his private papers, his private property, to be used as evidence against him, is one thing, but to require a public officer to produce the official records and papers in his office, the property of the public, to be used on the trial of a case in which his official conduct is involved, is another and quite a different thing in the eye of the law."

While generally certified copies of court records should be put in evidence, instead of the originals, yet under the particular facts of this case, as shown by the note of the trial judge it was not error to allow certain original records of the ordinary's office, which were material and pertinent to the issue, to be introduced in evidence. The note of the trial judge was as follows: "All the original records called for in the notice to produce, and which were by the order of the court produced and admitted in evidence, were necessary to illustrate by their physical condition and arrangement the issue made by the charges in the indictment which otherwise could not be shown. The original notice was never acted upon, nor was the order acted upon directed to the sheriff. But the books and records were produced upon the order issued upon application marked Exhibit C, requiring Wm B. Kent, as ordinary, to point out and designate the records desired to Mr. Wooten as solicitor general. Ground 16 approved, with the exception the original book and record thereof both showed apparently an alteration from J. M Slaton to J. M. Brown. This the 8th day of January, 1916. [Signed] Walter W. Sheppard, Judge Superior Court, Atlantic Circuit, Presiding."

There was no error in admitting in evidence certified copies of the records of the United States court.

A party cannot raise a constitutional question in a case by placing a factitious or incorrect interpretation upon a law and basing the alleged unconstitutionality on the effect of such an interpretation. Whether a statute is or is not unconstitutional must be determined according to the construction placed upon it by the court that has final power to construe it. As to the construction of all criminal statutes in this state (excepting only certain cases arising under statutes creating felonies punishable by death) the Court of Appeals is the final arbiter. The constitutional amendment creating this court requires certification of a constitutional...