Miller v. State

Court of Appeals of Georgia

Miller v. State

128 S.E. 588, 34 Ga. App. 140, 1925 Ga. App. LEXIS 78

CourtCourt of Appeals of Georgia

DecidedJune 9, 1925

Docket16379

StatusPublished

Cited by1 cases

This text of 128 S.E. 588 (Miller 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.

Bluebook

Miller v. State, 128 S.E. 588, 34 Ga. App. 140, 1925 Ga. App. LEXIS 78 (Ga. Ct. App. 1925).

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Opinion

Broyles, C. J.

1. There is a written motion by the State to dismiss the bill of exceptions upon the ground that “no certificate was filed in the court below upon the filing of the bill of exceptions in this case as required by rule 60 (a.), par. 6318, of. the rules of superior court.” The motion is not sworn to, and no proof (by certificate of the clerk of the trial court or otherwise) is submitted to sustain the averment in the motion. Held: Conceding (but not deciding) that a bill of exceptions should be dismissed when it is established by proof that [141]*141the required certificate has not been filed, the motion in the instant case is palpably without merit and is denied.

Decided June 9, 1925. W. H. Duckworth, for plaintiff in error. Jeff. A. Pope, solicitor, contra.

2. “The burden of proving that one accused of a violation of section 715 of the Penal Code did not have good cause for quitting the hirer rests upon the prosecution (Thorn v. State, 13 Ga. App. 10, 78 S. E. 853); and in the present ease this essential proof was not furnished by the hirer’s testimony that the accused ‘did not have any reason for not returning the money or picking the cotton.’ This statement was a mere opinion or conclusion, not supported by proof of sufficient facts to give it probative value. Swilley v. State, 14 Ga. App. 15 (80 S. E. 31); Mobley v. State, 31 Ga. App. 730 (79 S. E. 907).” Simmons v. State, 18 Ga. App. 65 (2) (88 S. E. 800). Under this ruling, and the facts of the instant ease, the conviction of the defendant was unauthorized, and the court erred in refusing the grant of a new trial.

Judgment reversed.

Lulce and Bloodworth, JJ., coneur.

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Broyles, C. J.

1. There is a written motion by the State to dismiss the bill of exceptions upon the ground that “no certificate was filed in the court below upon the filing of the bill of exceptions in this case as required by rule 60 (a.), par. 6318, of. the rules of superior court.” The motion is not sworn to, and no proof (by certificate of the clerk of the trial court or otherwise) is submitted to sustain the averment in the motion. Held: Conceding (but not deciding) that a bill of exceptions should be dismissed when it is established by proof that [141]*141the required certificate has not been filed, the motion in the instant case is palpably without merit and is denied.

Decided June 9, 1925. W. H. Duckworth, for plaintiff in error. Jeff. A. Pope, solicitor, contra.

2. “The burden of proving that one accused of a violation of section 715 of the Penal Code did not have good cause for quitting the hirer rests upon the prosecution (Thorn v. State, 13 Ga. App. 10, 78 S. E. 853); and in the present ease this essential proof was not furnished by the hirer’s testimony that the accused ‘did not have any reason for not returning the money or picking the cotton.’ This statement was a mere opinion or conclusion, not supported by proof of sufficient facts to give it probative value. Swilley v. State, 14 Ga. App. 15 (80 S. E. 31); Mobley v. State, 31 Ga. App. 730 (79 S. E. 907).” Simmons v. State, 18 Ga. App. 65 (2) (88 S. E. 800). Under this ruling, and the facts of the instant ease, the conviction of the defendant was unauthorized, and the court erred in refusing the grant of a new trial.

Judgment reversed.

Lulce and Bloodworth, JJ., coneur.

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Bluebook (online)

128 S.E. 588, 34 Ga. App. 140, 1925 Ga. App. LEXIS 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-state-gactapp-1925.

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