Mayson v. State

• Decision Date: 15 February 1906
• Parties: MAYSON. v. STATE.
• Court: Georgia Supreme Court

53 S.E. 321

(124 Ga. 789)

MAYSON.

v.STATE.

Supreme Court of Georgia.

Feb. 15, 1906.

1. Criminal Law — New Trial — Excessive Sentence.

A complaint that a sentence is excessive cannot properly be made a ground of a motion for a new trial.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 2292.]

2. Same—Assignments of Error—Waiver.

An assignment of error not referred to in the brief of the plaintiff in error will be treated a3 abandoned.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 3012.]

3. Same—Discretion of Court—Refusal of New Trial.

The verdict was supported by the evidence, and the discretion of the trial judge in refusing a new trial will not be disturbed.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Criminal Law, §§ 3067-3071.]

(Syllabus by the Court.)

Error from Superior Court, Fulton County; L. S. Roan, Judge.

Frank Mayson was convicted of crime, and brings error. Affirmed.

Moore & Moore, for plaintiff in error.

C. D. Hill, Sol. Gen., for the State.

ATKINSON, J. 1. One of the grounds of the motion for a new trial complains that "the sentence of ten years in said case is excessive." This objection is one which goes to the judgment only, and does not extend to the verdict, which the motion for a new trial seeks to set aside. That the error alleged affords no ground for setting aside a verdict and granting a new trial is well established by repeated rulings of this court. Truitt v. State (this term) 52 S. E. 890; Bellinger v. State, 116 Ga. 545, 42 S. E. 747; McCollum v. State, 119 Ga. 308, 46 S. E. 413, 100 Am. St. Rep. 171.

2. Another of the grounds of error complained of relates to a refusal by the court to postpone the trial of the case because of the statement by one of the counsel for the defendant, made when the case was called for trial, "that he was physically unable to go into the trial of the case, and that he was the counsel to whom Frank Mayson was looking for his defense." Whether, under the explanation of this exception, made by the court in the order approving the grounds of the motion for a new trial, therewas any merit in this exception, we do not j determine, for the reason that upon the argument in this court the counsel for the plaintiff in error did not, in the briefs filed, refer to or otherwise insist upon this as a reason for the reversal of the judgment. The court, therefore, under the well-established rules of practice prevailing here under such circumstances, will treat as abandoned such assignment of error. Tarver v. State, 123 Ga. 494, 51 S. E. 501; Williams v. State, 121 Ga. 169, 48 S. E. 906; Sayer v. Douglas County, 119 Ga. 550,...