OPINION OP THE COURT.
HANNA, J.
The appellant, Bobert N. Williams, was convicted 'of the offense of receiving and accepting a bribe. He appeals from the judgment of the court sentencing him to serve a term in the state penitentiary of from not less than 31/2 years nor more than 4 years.
The appellant’s brief omits a statement of facts; hence the following statement of facts appearing in the brief of the state will be considered as the facts of this ease on appeal:
The appellant was elected to the office of justice of the peace of precinct No. 2, Curry county, N. M., January 13, 1913, for a term of two years, and qualified as such officer immediately thereafter. Late in the month of November, 1913, there were filed with appellant, as such justice of the peace, two complaints, each charging one Bay Moss with the offense of unlawful carrying of deadly weapons. Upon a hearing Moss was found guilty and a fine of $50 and a jail sentence of 50 days was imposed in each case. A motion for a new trial was filed, and the motion was granted by the justice, but upon consulting with the assistant district attorney and learning that the motion for a new trial had been erroneously granted, because there was no jurisdiction in the justice of the peace court to grant a new trial, this action of the court was vacated, and an appeal from the judgment of the court imposing the fine and jail sentence was prayed for and granted, and appeal bonds were filed. > Upon request of appellant the docket was written up by the assistant district attorney. The transcript of the docket entries and the papers in the two cases -were never transmitted to the clerk of the district court, as required bjr statute in cases appealed from justice of the peace courts.
From this point the material evidence, as shown by the record, was conflicting. George B. Moss, father of Bay Moss, testified) for the state: That he was approached by appellant on the streets of Texico, and in conversation that ensued appellant agreed to dismiss the two cases against Baj'- Moss upon the payment to him by the senior Moss of the sum of $50. That he (Moss) then procured $45, which appellant agreed to accept, and ordered the witness to go up to his office and place the money in appellant’s desk. Witness complied, and later the same day appellant called witness to the front door of the former’s office and delivered to him the papers in the two cases. These papers were later burned by the witness. Later he examined the docket entries of the two eases, and found they had not been marked “Dismissed,” as appellant had agreed should be done. That he went to appellant’s house and suggested to the latter’s wife that the docket be destroyed to prevent appellant “getting into trouble.” All of this incriminating testimony was denied by appellant and his witnesses. The testimony of the appellant was to the effect that during his absence from the state because of sickness the docket of his court and the papers in the Moss case had been taken from his office and had’ never been returned.
[1] The first five points made in appellant’s brief concern the admission of evidence over his objection. The state contends that these points are not properly before the court for consideration because the motion for a new trial does not set forth the reasons why the admission of such testimony is erroneous. An examination of the record discloses that no reasons were assigned in the motion for a new trial as to why the admission of such evidence was erroneous. An illustration of the method pursued by appellant with reference to these points is as follows:
“(6) Tire court erred in admitting the testimony of tJm witness George B. Moss, and in overruling the defendant’s objection propounded to said Moss as follows: ‘You were asked, Mr. Moss, if you did not get these papers yourself out of the office of Mr. R. N. Williams, the justice of the peace. I will ask you to state to the jury whether or not you know of this defendant, Williams, accepting money from other persons to drop cases on his docket.’ And to 1 the witness answered: ‘Well, that is just hearsay, not of my own personal knowledge; I wasn’t an eyewitness.’ And to which ruling of the court the defendant at the time excepted.
The two statutory provisions of this state referring to motions for a new trial (sections 4226 and 1407, Code 1915) are silent as to what the motion must contain in order to constitute a proper assignment of error.
In Dutton v. State, 92 Ga. 14, 18 S. E. 545, the second paragraph of the syllabus reads as follows:
‘.‘Several grounds of the motion for a new trial complaining that evidence was admitted over objection, but not stating what the objection was, these grounds of the motion are not sufficiently definite to be considered.”
In Hoifer v. Gladden, 75 Ga. 532, the court said:
“The assignments of error on the first, second, third, and fourth grounds of the motion [for the new trial] cannot be considered here, because they all go to the admission of evidence, and the ground on which that evidence was objected to is not specified in either of the several grounds of the motion above numbered.”
In Georgia Railroad & Banking Co. v. Bohler, 98 Ga. 184, 26 S. E. 739, the court said:
“We do not think the exception to the charge of the court as stated in the motion for a new trial was well taken. The language complained of in this instruction is substantially the language employed in section 3018 of the Code, which gives a right of action for the character of injuries complained of, and is a fair statement of a sound proposition of law. It will be seen, from reading the ground of the motion wherein complaint is made because the court permitted the plaintiff to testify to certain facts, that it affords no reason for the reversal of a judgment denying a new trial, for the reason that, while it appears that the plaintiff objected to the introduction of the evidence, it is not stated what objection was made by him at the time it was offered. Therefore we cannot say whether the court ruled properly upon the objection or not. To say in the motion for a new trial that the movant objected to certain evidence, and there said that the objection should have been sustained because the evidence offered was irrelevant, does not imply that at the time it was offered the same, reason was assigned why it should be rejected as was assigned as a reason why a new trial should be granted, because of its admission. In other words, there was as to this ground no legal assignment of error, and the court could properly disregard it in passing upon the motion for a new trial.”
In Bray v. Walker, 112 Ga. 364, 37 S. E. 370, the court said:
“One of the grounds of the motion for a new trial is ‘because the court erred in admitting the fi. fa. in said case in evidence over the objections of claimants.’ It has been repeatedly ruled that a ground in a motion for a new trial complaining of alleged error in admitting evidence cannot be considered by this court when it does not appear from the assignment of error in the motion what objection was made by the movant to the introduction of' the evidence.
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OPINION OP THE COURT.
HANNA, J.
The appellant, Bobert N. Williams, was convicted 'of the offense of receiving and accepting a bribe. He appeals from the judgment of the court sentencing him to serve a term in the state penitentiary of from not less than 31/2 years nor more than 4 years.
The appellant’s brief omits a statement of facts; hence the following statement of facts appearing in the brief of the state will be considered as the facts of this ease on appeal:
The appellant was elected to the office of justice of the peace of precinct No. 2, Curry county, N. M., January 13, 1913, for a term of two years, and qualified as such officer immediately thereafter. Late in the month of November, 1913, there were filed with appellant, as such justice of the peace, two complaints, each charging one Bay Moss with the offense of unlawful carrying of deadly weapons. Upon a hearing Moss was found guilty and a fine of $50 and a jail sentence of 50 days was imposed in each case. A motion for a new trial was filed, and the motion was granted by the justice, but upon consulting with the assistant district attorney and learning that the motion for a new trial had been erroneously granted, because there was no jurisdiction in the justice of the peace court to grant a new trial, this action of the court was vacated, and an appeal from the judgment of the court imposing the fine and jail sentence was prayed for and granted, and appeal bonds were filed. > Upon request of appellant the docket was written up by the assistant district attorney. The transcript of the docket entries and the papers in the two cases -were never transmitted to the clerk of the district court, as required bjr statute in cases appealed from justice of the peace courts.
From this point the material evidence, as shown by the record, was conflicting. George B. Moss, father of Bay Moss, testified) for the state: That he was approached by appellant on the streets of Texico, and in conversation that ensued appellant agreed to dismiss the two cases against Baj'- Moss upon the payment to him by the senior Moss of the sum of $50. That he (Moss) then procured $45, which appellant agreed to accept, and ordered the witness to go up to his office and place the money in appellant’s desk. Witness complied, and later the same day appellant called witness to the front door of the former’s office and delivered to him the papers in the two cases. These papers were later burned by the witness. Later he examined the docket entries of the two eases, and found they had not been marked “Dismissed,” as appellant had agreed should be done. That he went to appellant’s house and suggested to the latter’s wife that the docket be destroyed to prevent appellant “getting into trouble.” All of this incriminating testimony was denied by appellant and his witnesses. The testimony of the appellant was to the effect that during his absence from the state because of sickness the docket of his court and the papers in the Moss case had been taken from his office and had’ never been returned.
[1] The first five points made in appellant’s brief concern the admission of evidence over his objection. The state contends that these points are not properly before the court for consideration because the motion for a new trial does not set forth the reasons why the admission of such testimony is erroneous. An examination of the record discloses that no reasons were assigned in the motion for a new trial as to why the admission of such evidence was erroneous. An illustration of the method pursued by appellant with reference to these points is as follows:
“(6) Tire court erred in admitting the testimony of tJm witness George B. Moss, and in overruling the defendant’s objection propounded to said Moss as follows: ‘You were asked, Mr. Moss, if you did not get these papers yourself out of the office of Mr. R. N. Williams, the justice of the peace. I will ask you to state to the jury whether or not you know of this defendant, Williams, accepting money from other persons to drop cases on his docket.’ And to 1 the witness answered: ‘Well, that is just hearsay, not of my own personal knowledge; I wasn’t an eyewitness.’ And to which ruling of the court the defendant at the time excepted.
The two statutory provisions of this state referring to motions for a new trial (sections 4226 and 1407, Code 1915) are silent as to what the motion must contain in order to constitute a proper assignment of error.
In Dutton v. State, 92 Ga. 14, 18 S. E. 545, the second paragraph of the syllabus reads as follows:
‘.‘Several grounds of the motion for a new trial complaining that evidence was admitted over objection, but not stating what the objection was, these grounds of the motion are not sufficiently definite to be considered.”
In Hoifer v. Gladden, 75 Ga. 532, the court said:
“The assignments of error on the first, second, third, and fourth grounds of the motion [for the new trial] cannot be considered here, because they all go to the admission of evidence, and the ground on which that evidence was objected to is not specified in either of the several grounds of the motion above numbered.”
In Georgia Railroad & Banking Co. v. Bohler, 98 Ga. 184, 26 S. E. 739, the court said:
“We do not think the exception to the charge of the court as stated in the motion for a new trial was well taken. The language complained of in this instruction is substantially the language employed in section 3018 of the Code, which gives a right of action for the character of injuries complained of, and is a fair statement of a sound proposition of law. It will be seen, from reading the ground of the motion wherein complaint is made because the court permitted the plaintiff to testify to certain facts, that it affords no reason for the reversal of a judgment denying a new trial, for the reason that, while it appears that the plaintiff objected to the introduction of the evidence, it is not stated what objection was made by him at the time it was offered. Therefore we cannot say whether the court ruled properly upon the objection or not. To say in the motion for a new trial that the movant objected to certain evidence, and there said that the objection should have been sustained because the evidence offered was irrelevant, does not imply that at the time it was offered the same, reason was assigned why it should be rejected as was assigned as a reason why a new trial should be granted, because of its admission. In other words, there was as to this ground no legal assignment of error, and the court could properly disregard it in passing upon the motion for a new trial.”
In Bray v. Walker, 112 Ga. 364, 37 S. E. 370, the court said:
“One of the grounds of the motion for a new trial is ‘because the court erred in admitting the fi. fa. in said case in evidence over the objections of claimants.’ It has been repeatedly ruled that a ground in a motion for a new trial complaining of alleged error in admitting evidence cannot be considered by this court when it does not appear from the assignment of error in the motion what objection was made by the movant to the introduction of' the evidence. This court will not look through the brief of evidence in order to ascertain, if possible, therefrom what objection, if, any, was made to the admission of evidence. Taylor v. State, 105 Ga. 847, 33 S. E. 190.”
In passing upon a similar question the Indiana Appellate Court, in Stout v. Harlem, 20 Ind. App. 200, 50 N. E. 492, 48 N. E. 235, said:
“Á motion for a new trial must be sufficiently certain and specific to enable tbe court to identify the rulings without resort to any other part of the record. This court cannot look to the bill of exceptions to aid the motion, for the reason that the bill was not on file at the time the motion was presented to the trial court. It must appear that the ruling was fairly presented to the trial eourt for review before any question can be presented to the appellate tribunal.”
In 12 Cyc. 745, the doctrine is thus stated:
“The moving papers should specify with clearness and certainty the grounds on which a new trial is sought. * * * ”
See, also, Chestnut v. State, 112 Ga. 366, 37 S. E. 384, and 3 C. J. 967.
We cannot assume that, because appellant objected to the introduction of this evidence on certain grounds at the trial', the same objections were argued by him on the hearing of the motion for a new trial. It was his duty to clearly specify the grounds of his objection in his motion for a new trial, and, not having properly done so, no question on these points is presented for our consideration.
[2] Appellant argues that the court erred in not instructing the jury that George B. Moss was an accomplice, and as to the effect to be given the testimony of such a witness. The proposition of law for which appellant contends was contained in an objection to the instructions given by the court. The Assistant Attorney General contends that, as the instructions of the court and the exceptions thereto were not a part of the record by bill of exceptions, they are not before the court for any purpose. Without deciding what constitutes record proper or whether or not the instructions of the court in this case, and the exceptions mentioned, are a part of the record in this ease, either by way of record proper or by bill of exceptions, we will assume that the question urged by appellant is properly before us. The objection of the defendant reads as follows:
“(5) The defendant excepts to the failure of the court to instruct the jury that the witness George. B. Moss is an accomplice in the commission of the crime charged, if in fact there was such crime, and- that the jury should receive his testimony with caution and suspicion, and that they should 'ot convict ,the defendant upon the testimony of the said George B. Moss unless they believe this testimony to he true after a careful and cautious scrutiny of the same/’
The evidence on the part of the state tended to show that George B. Moss delivered to appellant the sum of $45, and appellant thereafter delivered the papers in the two cases to George B. Moss. This testimony was denied in whole by appellant, and he attempted to account for the loss of the custody of the papers in tlie two cases by stating that while he was absent from the state those papers had been taken from his office and had never been returned. Assuming that evidence introduced by the state showed the witness Moss was an accomplice, the evidence on the part of the appellant tended to contradict that conclusion. The requested instruction or exception assumes that Moss was an accomplice, whereas it appears that there was a conflict of evidence on the question.
Tn 3.9 L. R. A. (N. S.) 704, 705, will be found reported the case of People v., Coffey, 161 Cal. 433, 119 Pac. 901. The appellant was convicted of having agreed to receive and receiving a bribe. He was the incumbent of the public office of supervisor. The court, among other things, said:
“When the question of an accomplice arises in the trial of a case, the general and accepted rule is for the court to instruct the jury touching the law of accomplices,, and leave the question whether or not the witness he an accomplice for the decision of the jury as a matter of fact. * * “
“Whenever the facts themselves are in dispute, that is to say, whenever the question is whether the witness did or did not do certain things, which, admittedly, if he did do them, make him an accomplice, the jury’s finding upon similar principles is not disturbed. But * * * where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice.”
This is in harmony with the view that the court cannot charge as a matter of fact when the fact is in dispute. It is unnecessary to cite further authority on this proposition.. Suffice it to say that whether as a matter of law the witness was an accomplice would depend upon the facts, and, the facts being in dispute, the court was not authorized to assume the truth of one or the other side. Therefore the requested instruction was properly refused.
The judgment of the court is therefore affirmed; and it is so ordered,
Roberts, C.J., and Parker, J., concur.