Durden v. State , 52 Ga. 664 ( 1874 )

Trippe, Judge.

1. The defendants severed on the trial and were all convicted. Without objection on the part of the solicitor general, they made a joint motion for-a new trial. This motion was heard by the court upon its merits, the grounds considered, and it was regularly and formally overruled. Whether defendants, who thus sever, have the legal right to make ajoint motion for a new trial, over objection by the state, is not the question. We see many objections to such a practice. ' It would produce confusion and a mixing up in the same motion of divers grounds arising on separate trials. Certain questions as to organizing a jury on one trial, and different ones on the same point on the other trial, would arise, and all would have to be considered together. Many other difficulties of the same character could be pointed out. But this motion was made jointly, and as no objection was taken to it in that form, and judgment was regularly pronounced upon it, the defendants should not lose all rigid to have their cases reviewed for an irregularity that was not excepted to, and which fact was well known and understood by all parties. As the motion was thus jointly made and determined, a joint bill of exceptions will not be dismissed. But the right does not exist to include in such joint bill of exceptions, additional errors which were not contained in the joint motion for a new trial, and when objection is made to such additional exceptions thus assigned, they will not be considered. The evils that would occur from the practice of allowing, as a matter of rigid, the defendants to join in the motion for new trial — some of which have been pointed out, would be aggravated if the further right existed to assign new errors and make new exceptions in one bill for different causes occurring on the different trials, and which were not contained in the motion for the new trial. The waiver on the part of the state — so to call it — by not objecting to a joint motion, does not preclude it from the right to object to introducing other points happening on the different trials in this bill of exceptions.

2. The indictment in this case alleges circumstances of an aggravated nature, and the judge who tried the case certifies the same to be true under the evidence; all of which is corroborated by the testimony contained in the record. If this, under the old law, section 4400, Code of 1863, would have made the offense a felony, then the 1650th section of the new Code (acts of 1866, page 153,) allows the solicitor general the same fees as if the penalty had not been reduced. Unless there be a clear case of error in the taxing of costs under that section, by the judge who tries the case, this court will not interfere. The other grounds in the motion for a new trial were not urged, and, as modified by the judge, were not insisted upon. It is, therefore, unnecessary to consider them. It was admitted that the statements made in the certificate of the judge left no error to complain of so far as those grounds were concerned.

Judgment affirmed.