16 Ga. App. 228 | Ga. Ct. App. | 1915
Lead Opinion
On the first point which presents itself, to wit, that the date of filing entered on the accusation (December 29) was subsequent to the date of the trial (December 28), we can not consider the statement of the trial judge, written below the signature of his certificate to the bill of exceptions, that the accusation was actually filed on December 28, before the trial; for it is well settled that the power of a trial judge over a bill of exceptions is exhausted with the signing of the certificate, and that any subsequent statement, qualifying or contradicting the statements of the bill of exceptions which he has certified to be true, is ineffectual and can not be considered by a reviewing court. It is to be inferred, however, that the defendant waived the formal filing of the accusation prior to the trial, or perhaps consented to go to trial without it.
The record, then, raises merely the single question whether the evidence was sufficient to support the judgment finding the accused guilty of playing and betting at a game of “skin.” A verdict supported by some evidence and approved by the trial judge is never disturbed by this court, unless some error was committed which may have caused an unfavorable finding against the plaintiff in error, or contributed to it by prejudicing him before the jury. But a verdict or finding without any evidence to support it is contrary to law. In this case a single witness for the prosecution testified that he saw the accused, with others, engaged in a game of cards, and that some had cards and some had money; and the evidence would have authorized a verdict of guilty if the State had preferred a general charge of gaming. The State was not required to specify the game in which the defendant was engaged, but, having selected a specific game, and having based the charge thereon, it devolved
The learned trial judge incorporates in his statement approving the brief of the evidence the statement that “the game of skin was
Dissenting Opinion
dissenting. The evidence that the accused was playing the game of cards known as “skin,” as alleged in the accusation, is not entirely satisfactory to me, but a very important part of that evidence being demonstrations by witnesses with packs of playing cards, the trial judge, who, sitting as judge and jury, saw those demonstrations, was in a much better position than we are to determine that question of fact; and he, sitting as a jury, having determined it, and, as trial judge, having approved the verdict, and no error of law being complained of, in my opinion his discretion in refusing to grant the motion for a hew trial should not be interfered with. Moody v. State, 1 Ga. App. 772 (10), 775 (58 S. E. 262); Sims v. State, 1 Ga. App. 776 (3), 778 (57 S. E. 1029); Scott v. State, 6 Ga. App. 567 (65 S. E. 359).