Phillips v. State

12 S.E. 650, 86 Ga. 427, 1890 Ga. LEXIS 271

• Court: Supreme Court of Georgia
• Decided: December 23, 1890
• Status: Published

Opinion

Simmons, Justice.

Phillips was tried for the offence of selling spirituous liquors without a license, and was ’convicted. He made a motion for a new trial upon the grounds that the verdict was contrary to law and the evidence, and without evidence to support it, and that the indictment was fatally defective in that it failed to allege the month or the day upon which the alleged sale took place; which was overruled, and he excepted.

This case is rather weak upon the facts, but there was some evidence going to show the guilt of the defendant, and as the trial judge was satisfied with the finding of the jury we will not interfere with his discretion in refusing a new trial.

As to the indictment being defective because it did not allege any day or month when the alleged sale took place, the bill of exceptions states that no point or objection was made as to the indictment before conviction. It is too late after conviction to take exception to a defect of this kind; exception should have been taken upon the arraignment.

"We know of no law which compels a judge in making up a brief of evidence to hear evidence of others as to what was testified to, when he remembers it distinctly himself, as the judge certified he did in this case.

Judgment affirmed.