Sable v. State , 22 Ga. App. 768 ( 1918 )

Bloodworth, J.

An accusation was preferred in the city court of Savannah against Loeb Sable. He was convicted on the second count thereof, which charged that he “did unlawfully keep on hand at a place of business, to wit, the place of business of the said defendant, alcoholic liquors, spirituous liquors, and malted, fermented and brewed liquors, manufactured from malt, wholly and in part.” Sable made a motion for a new trial, and one ground of the motion was “because the punishment is excessive.” The motion was overruled, and by certiorari the defendant carried the case to the superior court, and the judge of that court, passed an order in which the certiorari was “overruled and dismissed.” An appeal was then taken to this court. In the brief of counsel for the plaintiff in error the only proposition argued was that the judge of the superior court, in certiorari cases of this character, is vested with discretionary powers and has the right to change or modify the sentence imposed by the judge of the city court, and that in his order overruling and dismissing the certiorari the superior court judge refused to exercise this discretion, and said: “In the instant case I decline to change the sentence, upon the ground that I have no legal right to do so.”

' The overruling by the judge of the city court of the ground that the sentence was excessive was right. This court and our Supreme Court have repeatedly held that “ Objection that a sentence imposed in a criminal case is excessive, or for any reason illegal or irregular, can not be properly made the ground of a motion for a. new trial.” Burgamy v. State, 114 Ga. 852 (2), 855 (40 S. E, 991). In Chapman v. State 118 Ga. 58 (44 S. E. 814), Justice Cobb said: “Objections to' a sentence can not be properly made grounds of a motion for a new trial. If there has been a lawful verdict of conviction rendered in a criminal case, an error committed by the 'judge in the imposition of the sentence will, be no sufficient reason for setting aside the verdict and trying the accused 'again upon the question of his guilt or innocence. Such being the case, of- course the objection should not be set forth in a motion for a new trial, which is the remedy given to the accused for determining whether any error has been committed prior to the verdict which would require another trial.” Among the other cases in .which the same principle has been ruled are Hill v. State, 122 Ga. 166 (50 S. E. 57); Sturkey v. State, 116 Ga. 526 (42 S. E. 747); Bellinger v. State, 116 Ga. 545 (42 S. E. 747); Hardison v. State, 95 Ga. 337 (5), 338 (22 S. E. 681); Martin v. Rome, 15 Ga. App. 496 (83 S. E. 872); Elzie v. State, 21 Ga. App. 501 (94 S. E. 627).

As the judge of the city court.did not err in overruling the motion for a new trial, neither did the judge of the superior court err in overruling the petition for certiorari. If the fact that the sentence is excessive can not properly be made a ground of a motion for a new trial, it follows that it is not error for the judge of a trial court to overrule a motion based on that ground. In this case, had the exceptions been djreet to this court from the city court, we would promptly and unhesitatingly have said that the ground of the motion alleging that the verdict was excessive was not good, because .“the sentence imposed is not matter proper for a motion for new trial.” Montross v. State, 72 Ga. 261 (5a), 268 (53 Am. R. 840). If the fact that a sentence is alleged to be excessive can not be made a ground of a motion for a new trial, can this “dead thing” be given life by filing a petition for certiorari? Assutedly not. This being true, there was nothing before the judge of the superior court upon which he could exercise his discretion. It matters not by what proc'ess of reasoning the judge of the superior court reached the conclusion that the certiorari should be “overruled and dismissed,” the conclusion is eprrect, and the judgment must be

Affirmed.

Broyles, P. J., and Harwell, J., concur.