Scott v. State

5 Ga. App. 812 | Ga. Ct. App. | 1909

Powell, J.

Scott was convicted of an offense, in Decatur superior court, and on December 28, 1908, Judge Spence, then judge of the superior court of the Albany circuit, overruled a motion for a new trial in the case. On December 31 Judge Spence’s term of office expired, and he was succeeded by Hon. Frank Park. The defendant tendered to Judge Park a bill of exceptions, complaining of the judgment of Judge Spence in overruling the motion for a new trial, and Judge Park signed and certified the bill of exceptions.

We -are without jurisdiction of the 'writ of error. The Civil Code, §5539, provides that a bill of exceptions shall be tendered "to the judge who presided in the cause.” There is no statutory provision whereby any other judge may verify the bill of exceptions. Section 5542 provides that "if the judge trying the case resigns, or otherwise ceases to hold the office as judge, when the bill of exceptions is tendered, he may nevertheless sign end certify.” We are holding in the case of Wright v. State, post (63 S. E. 936), that this -applies to criminal as well as to civil cases. If the judge whose final ruling is complained of could not verify the bill of exceptions after his term of office had expired, there would be no one who could do so, and the defendant who failed to get his bill of exceptions signed before the judge’s term expired would-be remediless; for the legislature has made no provision whereby the successor to the judgeship may verify the bill of exceptions complaining of rulings made by his' predecessor. The inexpediency of allowing such procedure was demonstrated clearly when, during the present session of this court, we were presented with a ease in which the defendant’s counsel had succeeded to the judgeship of the court in which the case was tried, and he himself had signeii the statutory certificate to the bill of exceptions complaining of rulings made by his predecessor in office before whom he, as counsel, had tried the case. The cases of Grace v. Gordon, 113 Ga. 88 (38 S. E. 404), and Brand v. Lawrenceville, 127 Ga. 237 (55 S. E. 967), are authority for the proposition that in the special case of interlocutory fast writs, the ex-judge can not certify, but not for the proposition that his successor in office may do so. Let the writ of error be

Dismissed.