Overruling of demurrer is matter for direct exception, not for assignment of error in motion for new trial.

On conflicting evidence, conviction of misdemeanor was authorized.

DECIDED APRIL 9, 1940. The defendant was convicted of a misdemeanor, and his motion for new trial was overruled. The sole assignment of error in the bill of exceptions is based on that judgment. The record shows that demurrers to the accusation were filed and overruled, but that ruling is not assigned as error in the bill of exceptions, but is complained of only in the amendment to the motion for new trial. Under repeated rulings of the Supreme Court and of this court, a ruling on demurrer can not be a ground of a motion for new trial. Such rulings can not be passed on by the appellate courts unless they are assigned as error in the bill of exceptions. All of the special grounds of the motion for new trial in this case are based on the overruling of demurrers to the accusation; and therefore those grounds can not be considered by this court. As to the general grounds of the motion for new trial: the evidence, while in sharp conflict, authorized the finding of the jury; and the refusal of the court to grant a new trial was not error.

Judgment affirmed. MacIntyre and Guerry, JJ., concur. *Page 493