Smith v. State

Carlisle, J.

A brief of evidence is essential to the validity of a motion for a new trial (Code, § 70-301; Herb v. Wolfe, 75 Ga. App. 20 (2), 41 S. E. 2d, 817; Dobbs v. Sims, 74 Ga. App. 1, 38 S. E. 2d, 680); and as the statute is imperative, not mentioning any excuse whatever, it contemplates that the movant can and must comply with its terms, irrespective of whether the official reporter has written out his report of the evidence or not (Vinson v. State, 53 Ga. App. 224, 185 S. E. 529); and where, on trial -and conviction of involuntary manslaughter, the defendant made a motion for new trial on October 23, 1950, based solely on the general grounds, which motion was regularly continued from time to time, and, instead of attaching a brief of evidence thereto, the movant appended, on June 14, 1952, “an information” stating that he was unable to prepare a brief of evidence, as the official reporter had failed and refused to transcribe his report of the evidence on the trial and had disappeared from the jurisdiction of the court, this court will not disturb the trial court’s refusal to accept the information as an excuse for the absence of the brief of evidence, nor disturb its judgment denying the invalid motion for a new trial.

Decided September 6, 1952. Hicks & Culbert, for plaintiff in error. John W. Davis, Solicitor-General, Robert L. Scoggin, contra.

Judgment affirmed.

Gardner, P.J., and Townsend, J., concur.