Glisson v. State

Court of Appeals of Georgia

Glisson v. State

77 S.E.2d 838, 88 Ga. App. 797, 1953 Ga. App. LEXIS 1205

CourtCourt of Appeals of Georgia

DecidedSeptember 23, 1953

Docket34759

StatusPublished

This text of 77 S.E.2d 838 (Glisson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Glisson v. State, 77 S.E.2d 838, 88 Ga. App. 797, 1953 Ga. App. LEXIS 1205 (Ga. Ct. App. 1953).

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Opinion

Carlisle, J.

This is the second appearance of this case in this court. On February 4, 1953, this court dismissed the writ of error in the case numbered 34500, Glisson v. State, for want of prosecution, the effect of which was to affirm the defendant’s conviction of selling whisky. The present writ of error is here upon exception to the trial court’s judgment denying the defendant’s extraordinary motion for a new trial, based upon alleged newly discovered evidence.

1. Where, after this court has affirmed a conviction of selling whisky, the defendant files an extraordinary motion for new trial, based upon alleged newly discovered evidence, and the motion is overruled, this court will not hold that in so ruling the trial court abused its discretion, where the requisite affidavits as to the residence, means of knowledge, character, and credibility of the witness on whose evidence the motion is based are not included in or attached to such motion. Carpenter v. State, 35 Ga. App. 349 (133 S. E. 350); Childers v. State, 38 Ga. App. 204 (143 S. E. 511), and citations; Trammell v. Shirley, 38 Ga. App. 710 (145 S. E. 486); Williams v. State, 34 Ga. App. 174 (128 S. E. 589); Code § 70-205.

2. While an extraordinary motion for new trial may raise questions, both of law and of fact, and the present motion raises only a question of fact, the general assignment of error, “to the judgment of the court overruling said motion for a new trial as amended plaintiff in error then and there excepted and now excepts and assigns the same as error,” is sufficient to require this court to review the judgment of the trial court. [798]*798Butler, Stevens & Co. v. Hall, 7 Ga. App. 777 (68 S. E. 331). Accordingly, the motion to dismiss the bill of exceptions, on the ground that the assignment of error is too general to raise a question for review, is denied.

Decided September 23, 1953. W. C. Hawkins, for plaintiff in error. E. W. Hill, Solicitor, contra.

Judgment affirmed.

Gardner, P. J., and Townsend, J., concur.

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Carlisle, J.

This is the second appearance of this case in this court. On February 4, 1953, this court dismissed the writ of error in the case numbered 34500, Glisson v. State, for want of prosecution, the effect of which was to affirm the defendant’s conviction of selling whisky. The present writ of error is here upon exception to the trial court’s judgment denying the defendant’s extraordinary motion for a new trial, based upon alleged newly discovered evidence.

1. Where, after this court has affirmed a conviction of selling whisky, the defendant files an extraordinary motion for new trial, based upon alleged newly discovered evidence, and the motion is overruled, this court will not hold that in so ruling the trial court abused its discretion, where the requisite affidavits as to the residence, means of knowledge, character, and credibility of the witness on whose evidence the motion is based are not included in or attached to such motion. Carpenter v. State, 35 Ga. App. 349 (133 S. E. 350); Childers v. State, 38 Ga. App. 204 (143 S. E. 511), and citations; Trammell v. Shirley, 38 Ga. App. 710 (145 S. E. 486); Williams v. State, 34 Ga. App. 174 (128 S. E. 589); Code § 70-205.

2. While an extraordinary motion for new trial may raise questions, both of law and of fact, and the present motion raises only a question of fact, the general assignment of error, “to the judgment of the court overruling said motion for a new trial as amended plaintiff in error then and there excepted and now excepts and assigns the same as error,” is sufficient to require this court to review the judgment of the trial court. [798]*798Butler, Stevens & Co. v. Hall, 7 Ga. App. 777 (68 S. E. 331). Accordingly, the motion to dismiss the bill of exceptions, on the ground that the assignment of error is too general to raise a question for review, is denied.

Decided September 23, 1953. W. C. Hawkins, for plaintiff in error. E. W. Hill, Solicitor, contra.

Judgment affirmed.

Gardner, P. J., and Townsend, J., concur.

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77 S.E.2d 838, 88 Ga. App. 797, 1953 Ga. App. LEXIS 1205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glisson-v-state-gactapp-1953.

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