Summerlin v. State

• Decision Date: 11 June 1908
• Parties: SUMMERLIN v. STATE.
• Court: Georgia Supreme Court

61 S.E. 849

130 Ga. 791

SUMMERLIN v. STATE.

Supreme Court of Georgia

June 11, 1908

Rehearing Denied June 24, 1908.

Syllabus by the Court.

"Affidavits relating to a ground of a motion for a new trial, which are not referred to therein, nor attached to the motion as exhibits, nor filed with the motion as a part thereof, but are each separately filed, cannot be considered by this court when transmitted as a part of the record, even though it appear, from a statement of the judge on each affidavit, that the same was used on the hearing of the motion for a new trial, and each affidavit was actually filed in office."

Amendments to a bill of exceptions allowable under Civ. Code 1895, § 5570, are such as contain matters which relate to imperfections or omissions of necessary and proper allegations which can be supplied from the transcript of the record.

(a) Even if affidavits used on the hearing of a motion for new trial, which are not incorporated therein nor attached thereto, nor filed with the motion as a part thereof under order of court, may be brought up under a supplemental certificate from the trial judge, under the provisions of the act of 1905 (Acts 1905, p. 84), the application for such supplemental certificate cannot be made after the expiration of 20 days from the service of the bill of exceptions.

[Ed Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2903-2905.]

The loss or absence of the inquest papers containing the substance of the testimony delivered before the coroner's inquest was sufficiently shown so as to admit a proven copy of the inquest papers containing the testimony of a witness sworn threat for purposes of impeachment.

[Ed Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 882, 887.]

The remarks of the court in ruling on an objection to evidence were not prejudicial to the accused.

(a) An assignment of error complaining of the admission of evidence cannot be considered unless the evidence, literally or in substance, alleged to have been illegally admitted is set forth.

A failure to instruct the jury that the purpose of impeaching testimony is only to discredit the witness attacked is not ground for a new trial, where there was no request for such an instruction, and where the court defined the different methods of impeachment, and instructed the jury that the testimony of a witness who had been successfully impeached should be disregarded unless supported by other testimony, or by the facts and circumstances of the case.

Upon an examination of the evidence, it is found sufficient to support the verdict. No error of law was committed. The verdict is approved by the trial judge, and there was no error in refusing a new trial.

Error from Superior Court, Coffee County; T. A. Parker, Judge.

Joe Summerlin was convicted of murder, and he brings error. Affirmed.

Rogers & Heath, for plaintiff in error.

L. A Wilson, J. W. Quincey, W. W. Lambdin, Jno. W. Bennett, Sol. Gen., and Jno. C. Hart, Atty. Gen., for the State.

EVANS P.J.

Joe Summerlin was convicted of the murder of Leon Mancil, and recommended to life imprisonment. His motion for new trial was overruled, and he excepted.

1. On the hearing of the motion for new trial the movant presented an amendment alleging certain special grounds as cause for setting aside the verdict. The court declined to approve the recitals of fact contained in the first, second, third, and fourth grounds, but allowed them subject to proof to be submitted by the movant. In his bill of exceptions there is a recital that the affidavits of certain affiants were considered by the judge in passing upon the motion, and these affidavits were therein specified as part of the record. Copies of these affidavits were included in the transcript and it appears therefrom that each affidavit had the indorsement of the judge that it was used on the hearing of the motion, and an indorsement of filing by the clerk. The affidavits were not incorporated in the motion for new trial, or in the bill of exceptions, nor attached to either, neither were they made a part of the record by being embodied in an approved brief of evidence or otherwise. In Glover v. State, 128 Ga. 1, 57 S.E. 101, it was held that "affidavits relating to a ground of a motion for a new trial which are not referred to therein, nor attached to the motion as exhibits, nor filed with the motion as a part thereof, but are each separately filed, cannot be considered by this court when transmitted as a part of the record, even though it appear from a statement of the judge on each affidavit that the same was used on the hearing of the motion for a new trial, and each affidavit was actually filed in office. This rule applies to affidavits offered by the movant, as well as to those offered by the respondent." This ruling has been followed in McDonald v. State, 129 Ga. 452, 59 S.E. 242, and in Sasser v. State, 129 Ga. 542, 59 S.E. 255. As the recitals of fact are not certified to be true, and the affidavits are not properly and legally before this court, these grounds of the motion cannot be considered.

2. The bill of exceptions was served on April 3, 1908. Thereafter on May 16th, the plaintiff in error presented to the Honorable U. V. Whipple, judge of the superior courts of the Cordele circuit (the Honorable T. A. Parker who had tried the case being unable to act because of his serious illness), a petition reciting the facts set out in the foregoing division of this opinion, and praying an order directing the clerk of the superior court to allow counsel for the plaintiff in error to withdraw from his office the original affidavits for the purpose of attaching the same to an amendment, which the plaintiff in error purposed to offer, to his original bill of exceptions pending in the Supreme Court. On the call of the case in this court the plaintiff in error moved to amend his bill of exceptions by attaching thereto the original affidavits which were used on the hearing of the motion for new trial. Under Civ. Code 1895, § 5570, a bill of exceptions may be amended so as to make it conform to the transcript of the record, but all amendments allowable under this section are by its terms confined to such imperfections or omissions of necessary and proper allegations as can be cured by or supplied from the transcript of the record. Jones v. Gill, 121 Ga. 93, 48 S.E. 688; Winn v. State, 124 Ga. 812, 53 S.E. 318. As already pointed out, the affidavits could not be legally included within the transcript of the record, and therefore the bill of exceptions is not amendable under this section of the Code. Neither can the act approved August 22, 1905 (Acts 1905, p. 84) amendatory of Civ. Code 1895, § 5536, be successfully invoked to authorize this amendment. This act provides that "if from the main or cross-bill of exceptions, in any case in which no brief of evidence is made and filed as a part of the record, there is omitted any material evidence, and the judge trying the case having inadvertently certified said bill of exceptions as true, then within twenty days from the date of the passage of this act as to cases now pending, and within twenty days from the date of service of bill of exceptions in all future cases, the trial judge may, on his motion, make a supplemental certificate of the evidence so omitted, and said supplemental certificate, together with the evidence so certified, shall form a part of said original main or cross-bill of exceptions," etc. Even if these affidavits might have been made the subject of a supplemental certificate to the bill of exceptions, under the act of 1905, as was intimated in Glover's ...