Land v. State , 37 Ga. App. 382 ( 1927 )

Bloodworth, J.

We will discuss the 4th headnote only. The fifth special ground of the motion for a new trial alleges error “because the court erred in allowing the jury trying these movants to disperse and separate during the dinner hour and progress of the trial without the consent of the movants or their attorney, Gordon Mann, who was the sole attorney representing them at the trial, and which was not known to movants or their attorney until after the rendition of the verdict in this case.” In a note by the judge as to this ground he says: “Movants and their attorney, Gordon Mann, were present when the jury dispersed; they made no objection thereto, either at the time or at any time thereafter, during which the jury-was excused in their hearing and in thei: presence.” Grounds of a motion for a new trial must be unqualifiedly approved as true by the trial judge. Goolsby v. State, 35 Ga. App. 167 (2-a) (132 S. E. 245); Mitchell v. State, 152 Ga. 375 (3) (109 S. E. 357); Jordan v. State, 153 Ga. 167 (2) (111 S. E. 417). In McLean v. Mann, 148 Ga. 114 (95 S. E. 985), Mr. Justice George said: “If the judge approved the ground of the amendment without more this is a sufficient approval; but an express approval with certain added qualifications is not an unqualified approval of a ground as true.” Several cases are cited to support this proposition. See also Collier v. Moore, 31 Ga. App. 227 (a), 229 (120 S. E. 441), and citations. In referring to approvals such as are referred to in the foregoing decisions, in the case of Mims v. Mims, 151 Ga. 330 (6) (106 S. E. 279), the Supreme Court says: “This character of entry does not fall within section 3 of the act of August 21, 1911 (Acts 1911, p. 149). Here there was not a mere failure to approve the grounds of the .motion, as provided for in the act of 1911, but an entry which amounted to a disapproval of them as set out in the motion for a new trial.” Landrum, v. Landrum, 145 Ga. 307 (2-b) (89 S. E. 201). Where there is a conflict between the allegations in a ground of a motion for a new trial and a statement made by the judge in approving this ground “the qualifying certificate of the judge settles .the dispute as to what really occurred and from his statement results a disapproval of, that ground of the motion.” Coart v. State, 156 Ga. 536 (4-a) (119 S. E. 723); Brice v. State, 117 Ga. 466 (1).

binder the foregoing rulings the note of the judge attached to this ground of the motion for a new trial does not amount to an unqualified approval of this ground as true, and this court can not consider it.

It appearing from the record that plaintiffs in error Carl Stephenson and Glenn Stephenson escaped from the custody of the proper officers on September 20, 1927, after the bill of exceptions in this case was certified by the trial judge; and it further appearing that this court on October 3, 1927, issued a rule nisi returnable November 14, 1927, allowing these defendants until said date to surrender and furnish evidence thereof by filing the same in the office of the clerk of this court; and it further appearing that said plaintiffs in error did not within the time limit fixed by the order of this court on October 3, 1927, surrender themselves to the proper officers, so as to be subject to the jurisdiction of this court, and furnish evidence thereof by filing the same in the clerk’s office; and it further appearing that no evidence of their surrender or recapture has been furnished to this court, it is therefore considered, ordered, and adjudged that the writ of error, so far as it relates to Carl Stephenson and Glenn Stephenson, be dismissed, and the judgment of the court below as to them stands affirmed.

The record, so far as it relates to Frank Stephenson and Ed Land, shows no cause for a reversal, and the judge of the trial court as to them is

Affirmed.

Broyles, O. J., and Lulce, J., concur.