Stubbs v. State

Court of Appeals of Georgia

Stubbs v. State

58 S.E. 236, 1 Ga. App. 504, 1907 Ga. App. LEXIS 12

CourtCourt of Appeals of Georgia

DecidedMarch 22, 1907

Docket227

StatusPublished

Cited by4 cases

This text of 58 S.E. 236 (Stubbs 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

Stubbs v. State, 58 S.E. 236, 1 Ga. App. 504, 1907 Ga. App. LEXIS 12 (Ga. Ct. App. 1907).

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Opinion

Busseiu, J.

The plaintiff in error suggests a diminution of the record, and asks that the affidavit of the prosecutor, on which the accusation was based, be ordered transmitted to this court as part of the record. We think it unnecessary to order the affidavit sent up; because even if its contents can be considered on review of a motion for new trial, the truth of the contention of the plaintiff in -error, that the affidavit upon which the accusation issued was for a misdemeanor, is already apparent from the record. But if the affidavit is a part of the accusation and for any reason is defective, the objection should have been urged by demurrer, motion to quash, or, éven after conviction, by motion in arrest of judgment. Neither on a motion for new trial, nor by a writ of error whose only assignment of error is the overruling of a motion for a new trial, can advantage be taken of the defects of the accusation. This brings us to the merits of the motion. It appears that there was evidence which would have authorized either an acquittal or a conviction, and that the jury, in the exercise of their prerogative, gave the preference to the witnesses for the State. The verdict, under the decision in Davis v. Kirkland, ante, 5, should not be disturbed.

Judgment affirmed.

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Busseiu, J.

The plaintiff in error suggests a diminution of the record, and asks that the affidavit of the prosecutor, on which the accusation was based, be ordered transmitted to this court as part of the record. We think it unnecessary to order the affidavit sent up; because even if its contents can be considered on review of a motion for new trial, the truth of the contention of the plaintiff in -error, that the affidavit upon which the accusation issued was for a misdemeanor, is already apparent from the record. But if the affidavit is a part of the accusation and for any reason is defective, the objection should have been urged by demurrer, motion to quash, or, éven after conviction, by motion in arrest of judgment. Neither on a motion for new trial, nor by a writ of error whose only assignment of error is the overruling of a motion for a new trial, can advantage be taken of the defects of the accusation. This brings us to the merits of the motion. It appears that there was evidence which would have authorized either an acquittal or a conviction, and that the jury, in the exercise of their prerogative, gave the preference to the witnesses for the State. The verdict, under the decision in Davis v. Kirkland, ante, 5, should not be disturbed.

Judgment affirmed.

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Bluebook (online)

58 S.E. 236, 1 Ga. App. 504, 1907 Ga. App. LEXIS 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stubbs-v-state-gactapp-1907.

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