Devereaux v. State

106 S.E. 739, 26 Ga. App. 429, 1921 Ga. App. LEXIS 199

• Court: Court of Appeals of Georgia
• Decided: March 8, 1921
• Docket: 12030
• Status: Published

Opinion

Bloodworth, J.

The accusation charged that the defendant unlawfully operated a motor-vehicle upon a public highway “ at a greater speed than ten miles per hour upon approaching a sharp curve and traversing said sharp curve.” A demurrer to the accusation was overruled and exceptions pendente lite were filed. This ruling and the overruling of the defendant’s motion for a new trial are assigned as error in the main bill of exceptions. Held:

1. “ Before exceptions pendente lite can be considered by this court, error must have been originally assigned in the main bill of exceptions upon the exceptions pendente Ule, and not merely upon the judgment complained of in the exceptions pendente lite, or such an assignment must be made, by the permission of this court, before the argument of the case here. Jones v. Ragan, 136 Ga. 653 (71 S. E. 1098) ; Sovereign Camp of Woodmen of the World v. Warner, 25 Ga. App. 449 (103 S. E. 861) ; Carhart v. Mackle, 25 Ga. App. 499 (103 S. E. 855).” Ponder v. State, 25 Ga. App. 768 (105 S. E. 318(1). Under this ruling the exceptions pendente lite in this case can not be considered.

2. None of the grounds of the motion for a new trial points out any error that would authorize the grant of a new trial.

3. There was evidence to support the verdict; it is approved by the trial judge, and this court will not interfere.

Judgment affirmed.

Broyles, G. J., and Luke, J., conowr.

The defendant’s objections to the admission of the diagram were: it was not made by an expert; it was only on opinion of the witness; it was not made on the scene, but was made from memory only; it was not made from data and figures made by the witness at the scene of the curve; it was not made to scale; it was immaterial and irrelevant; it was not proved to be a correct representation of the curve, or a correct diagram of the road at the place of the curve and at the time the offense was alleged to have been committed. In the motion for a new trial it is alleged that the court erred in admitting the diagram in evidence over these objections.

In the other special grounds of the motion for a new trial it is alleged that the court erred in admitting, over the objection that the testimony .was irrelevant- and could not in any way show the sharpness of the curve, the statements of the witness Birdsong that “there was a building on the side of the road;” that one could not see around the curve, on account of the building; that, standing where the curve begins, one can see ahead about 20 feet and not more than 20 feet on the bed of the road, and that in traversing the curve one can go about 15 feet before entering a stretch of the road.

Clements & Clements, James L. Wimberly, for plaintiff in error. Roy W. Moore, solicitor, Harry 8. Slrozi&r, contra.