Soell v. State

• Decision Date: 16 May 1908
• Docket Number: (No. 650.)
• Citation: 4 Ga.App. 337,61 S.E. 514
• Parties: SOELL. v. STATE.
• Court: Georgia Court of Appeals

4 Ga.App. 337

61 S.E. 514

SOELL.

v.STATE.

(No. 650.)

Court of Appeals of Georgia.

May 16, 1908.

1. Criminal Law—Writ of Error—Presentation and Reservation of Grounds of Review—Admission of Evidence.

Error in the overruling of a motion to exclude testimony may be assigned by exceptions pendente lite, or may be reviewed by motion for new trial.

2. Same—Motions for New Trial—Authentication of Grounds.

The grounds of a motion for new trial must be distinctly approved by the trial judge. This approval may be entered upon the motion or the ground of the motion may be verified in the bill of exceptions, but grounds of a motion not approved will not be considered by a reviewing court.

(a) The approval of a ground of a motion fornew trial extends no further than to verify statements contained therein as written.

(b) Where it does not appear that the objection which is urged to the admissibility of evidence was presented to the trial judge at the trial, or what objections, if any, were urged in support of a motion to exclude testimony, nothing is presented for the determination of the court in passing upon this ground of the motion for new trial, and it may be disregarded without error.

3. Same—Review—Questions of Fact.

Though the evidence of the defendant's guilt is weak and unsatisfactory, this court has no jurisdiction to review a finding of the jury upon an issue of fact.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 3074-3083.]

(Syllabus by the Court.)

Error from Superior Court, Walker County; Moses Wright, Judge.

Christian Soell was convicted of an illegal sale of an intoxicating liquor, and he brings error. Affirmed.

Payne & Payne, Lumpkin & Wright, and J. E. Rosser, for plaintiff in error.

W. H. Ennis, Sol. Gen., and W. B. Shaw, for the State.

RUSSELL, J. The plaintiff in error, having been convicted, made a motion for new trial. His motion was originally based upon two general grounds, and by amendment at the hearing a third ground was added. The decision of the case turns upon the disposition of the third or amended ground of the motion. After thorough investigation, prolonged consideration, and several thorough discussions of the record in this case and of the law applicable thereto, this court is satisfied that we cannot hold that the trial judge erred in overruling the motion for new trial.

The amended ground of the motion for new trial, which was allowed by the presiding judge, was as follows:

"Because the court erred in not sustaining the motion of the defendant to exclude the testimony of T. A. Mashburn, to the effect that he purchased from Guy Shuttleworth, at Park City, Ga., some beer and whisky, paying for the same, but the sale was made to him by Shuttleworth to whom I paid the money therefor, and in admitting said testimony, said evidence being inadmissible and incompetent under the allegations of the indictment; and there is a material variance between the allegations of the indictment and said testimony. Said defendant was not put upon notice by the indictment that he was called upon to defend where the illegal sale was claimed to have been made through another person as agent. Wherefore defendant prays the grant of a new trial upon the above ground.

"Allowed. Moses Wright, J. S. C. R. C." It will be noticed that the amended ground of the motion for new trial is only "allowed" by the presiding judge, which is not equivalent to that distinct and affirmative approval which is essential for the verification by the court of the statements of fact therein contained. Nothing is better settled than that grounds of a motion for new trial, not approved by the trial judge, will not be considered by a reviewing court. "An amendment to a motion for a new trial which has upon it an entry to the effect that it was 'allowed' by the judge, with nothing else to indicate an approval of its grounds, is not sufficiently verified to authorize this court to deal with the assignments of error therein made." Merritt v. Merritt, 113 Ga. 569, 38 S. E. 973. The entry of allowance meant "nothing more than that counsel's request to file additional grounds as an amendment was granted. A trial judge may pass upon grounds of a motion for new trial without approving them in the first instance. If, however, he overrules the motion and the case is brought here, it is necessary that they have the express approval of the trial judge, and that the fact of his approval affirmatively appear. Had this motion been granted by the trial judge * * * [and could the case have been brought here by the state], alleging error in granting the motion, the granting of the motion would have been such a verification of the grounds that they could be considered here. The granting of the motion on these grounds verifies their truth." Long v. Scanlan, 105 Ga. 425, 31 S. E. 436. See, also, Stephens v. Woolbright, 60 Ga. 323; Flournoy v. Wardlaw, 67 Ga. 378; Skinner v. Roberts, 92 Ga. 366, 17 S. E. 353. The purpose of the verification of a ground of a motion for new trial being to inform the appellate court as to what indisputably occurred on the trial in the lower court, it has uniformly been held that if the judge, in the bill of exceptions, certified such a ground to be true, this would be equivalent to an approval of the ground in the first instance. It must affirmatively appear by the judge's certificate, on the motion itself or by an affirmative recital in the bill of exceptions, that the grounds taken are as a matter of fact true, or they cannot be considered by the appellate court, and either will suffice to verify all that is stated in any or all of the grounds of the motion, but not more than is thus contained. Smith v. Summerlin, 48 Ga. 425; Puffer v. Peabody, 59 Ga. 295; Central R. Co. v. Sears, 59 Ga. 436; Flanders v. Maynard, 58 Ga. 56; ...