Oglesby v. State , 121 Ga. 602 ( 1905 )

Cobb, J.

The accused was arraigned in the city court of Elberton, upon a presentment charging him with a violation of a local act prohibiting the sale of liquor in Elbert county. Acts 1884 — 5, p. 520. He filed a general and special demurrer and plea in abatement to the presentment, each of which being overruled, he filed a plea of not guilty. After conviction he made a motion for a new trial, and assigns error upon the overruling of this motion and on the overruling of the demurrers and plea in abatement. The principles stated in the headnotes are controlling upon the various questions involved. While the record does disclose some irregularity in the manner in which the accused was brought into court for trial, this irregularity did not afford any reason for granting a new trial. If the accused, after having been brought into court, bad moved for a discharge upon the ground that he was in the custody of his bail, who had not surrendered him, and that the court could not proceed to bring him into court by force until his bond had been forfeited, he might have been entitled to a release. But if the judge committed any error in this respect, it can not be taken advantage of by a motion for a new trial. A ruling of the court in reference to the matter should have been invoked, and exceptions pendente lite filed if the ruling was adverse to the accused. The case of McDaniel v. State, cited in the headnotes, seems to be controlling, in principle, upon this point. We see no reason for reversing the judgment.

Judgment affirmed.

All the Justices concur.