Newsome v. State

• Citation: 58 S.E. 672,2 Ga. App. 392
• Decision Date: 25 July 1907
• Docket Number: (No. 523.)
• Parties: NEWSOME. v. STATE.
• Court: United States Court of Appeals (Georgia)

58 S.E. 672

(2 Ga. App. 392)

NEWSOME.

v.STATE.

(No. 523.)

Court of Appeals of Georgia.

July 25, 1907.

1. Indictment — Time of Committing Offense—Allegations—Certifying Question to Supreme Court.

This case is controlled by prior decisions of the Supreme Court, which, in the opinion of this court, are based upon sound reason. No sufficient cause appears for certifying the point involved to the Supreme Court, or for asking that court to review and overrule its previous decision upon the subject.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 233.]

2. Same—Motions in Arrest—Exceptions to Indictment.

Exceptions which go merely to the form of the indictment or accusation, if not taken before joinder of issue, are considered to be waived. They cannot be reached by a motion in arrest of judgment.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 629.]

(Syllabus by the Court.)

Error from City Court.of Moultrie; R. L. Shipp, Judge.

Ed. Newsome was convicted of an Illegal sale of intoxicating liquors, and brings error. Affirmed.

J. D. McKenzie, Alfred Kline, and James Humphreys, for plaintiff in error.

W. F. Way, Sol., for the State.

RUSSELL, J. The plaintiff in error was convicted on the 16th day of May, 1906, upon an accusation filed that day, in which he was charged with the offense of selling intoxicating liquors in Colquitt county on the 29th day of October, 1907. He waived arraignment, copy of accusation, and list of witnesses, and pleaded not guilty. He did not demur to the accusation. On the trial the evidence showed that he had made a sale of spirituous liquor in Colquitt county on the 29th day of October, 1906. He moved the court to direct a verdict of not guilty, on the ground that the accusation alleged a crime at some subsequent day or impossible date, and that the accusation was not sufficient, on account of this date, to authorize a conviction. The court overruled this motion, and, after argument and the charge of the court, a verdict was rendered finding defendant guilty. On the same day the defendant made a motion in arrest of judgment, upon the following grounds: First, "because the accusation, upon which defendant was tried, alleged and charged that the crime was committed on a day and time subsequent to the day and time of filing the accusation and the trial thereon; the day of filing being May 16, 1906, and the day and time alleged and charged in said accusation being October 29, 1907"; second, "because the verdict and judgment is void and of no effect, based upon an accusation charging a crime subsequent to the date of filing said accusation." The motion in arrest of judgment was overruled. The plaintiff in error excepts to the refusal to direct a verdict of acquittal, and to the judgment In overruling his motion in arrest of judgment.

The only question in the case is whether conviction was warranted on the accusation as written. The insistence of the plaintiff in error, that every indictment or accusation, to support a valid conviction, must charge the crime to have been committed on a definite date previous to the finding of the indictment or filing of the accusation, even though the proof might be any time within the statute of limitations, is not a new one in this state. Counsel for plaintiff in error recognize this fact, and on that account request that we certify this case to the Supreme Court in order that that court may review and reverse the decisions in McMath v. State, 55 Ga. 303, Jones v. State, 55 Ga. 625, Williams v. State, 55 Ga. 391, Harris v. State, 58 Ga. 333, Johnson v. State, 90 Ga. 444, 16 S. E. 92, Adkins v. State, 103 Ga. 5, 29 S. E. 432, Spencer v. State, 123 Ga. 133, 51 S. E. 294, and other similar cases. If the decision in Adkins v. State, supr...