Opinion
32018.
DECIDED MAY 6, 1948.
Assault; from Cook Superior Court — Judge W. R. Smith. March 6, 1948.
Robert R. Forrester, for plaintiff in error.
H. W. Nelson, Solicitor-General, contra.
1. In order to vest jurisdiction in this court to review a judgment of a trial court, rendered in the course of the trial and before the final determination of the case, exceptions pendente lite to such judgment must be preserved within twenty days of the date of its entry, and thereafter error thereon must be assigned thereto in the bill of exceptions, or error must be assigned thereon in the bill of exceptions within twenty days of the date of the entry of such judgment. Code § 6-1305; Code (Ann. Supp.). §§ 6-701, 6-905; Batchelor v. Born, 177 Ga. 886 ( 171 S.E. 724); Lathem v. Reinhardt, 76 Ga. App. 528 ( 46 S.E.2d 631); Evans v. Luce, 190 Ga. 403 (1) ( 9 S.E.2d 646).
2. The judgment of a trial court either overruling or sustaining a demurrer is not proper ground of a motion for a new trial; assignments of error upon such ruling must be presented by timely exceptions pendente lite and direct exceptions based thereon, or by direct exceptions where made within the required time from the entry of the judgment. See Weeks v. Reliance Fertilizer Co., 23 Ga. App. 128 (2) ( 97 S.E. 664); Hawkins v. Studdard, 132 Ga. 265 (1) ( 63 S.E. 852, 131 Am. St. R. 190).
3. The evidence was sufficient to support the judgment of the court trying the case, by agreement, without the intervention of a jury, and on motion for a new trial, it having his approval, the same will not be disturbed by this court. See many cases cited in Code (Ann.) § 70-202, under catchwords "Any evidence" and "Approval." See also Pitts v. State, 25 Ga. App. 31 ( 102 S.E. 381), and Bryant v. State, 36 Ga. App. 113 ( 136 S.E. 111).
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.
DECIDED MAY 6, 1948.
Charlie Lee Carter, alias Charlie Lee Lane, was indicted by the grand jury of Cook County, for an attempt to commit a violent injury upon the person of Marjorie Sue McCranie, hereinafter referred to as the prosecutrix. The defendant demurred to the indictment, and the trial court overruled the demurrer on February 11, 1948. The record discloses no exceptions pendente lite to this ruling. Error is assigned in the bill of exceptions which was tendered and approved March 6, 1948, more than 20 days from the date of the entry of this judgment.
Upon the trial of the case, construing the evidence most favorably in support of the judgment, the trial judge trying the case by agreement without the intervention of a jury was authorized to find facts substantially as follows: that the prosecutrix was a 13-year-old girl; that on the night of January 10 she went to a show in Adel and came out of the show about 9:30; that she started to the home of her aunt who lived several blocks from the show; that as she went along the streets leading to her aunt's home, the defendant began following her; that on one or two occasions she crossed the street and he, continuing to follow her, also crossed the street; that upon approaching her the defendant picked up something resembling a rock and said to the prosecutrix, "Come here little girl;" that when he said this she ran to where a taxi was parked and the defendant turned and ran in the other direction; that the taxi driver took the prosecutrix to the police station and procured a police officer who shortly thereafter arrested the defendant as he was walking back out of the broomstraw field across which he ran in the first instance; that the defendant's breathing at the time of his arrest indicated that he had been running; that upon searching him a piece of concrete resembling a stone was found in his pocket; that upon his arrest he told the officer he had a flat tire and was going to a garage to borrow tools to repair it; that the officer found all the tires on the car to be up; that the defendant then told the officer that his starter would not turn the motor over and that he was going to the garage to get tools to fix that; that an examination of the car revealed the starter in good repair; that the defendant then stated he was so drunk that he did not know what he was doing; and that the defendant was in fact not drunk at the time of the arrest which occurred only a few minutes after the alleged attempted assault. The judge entered his judgment finding the defendant guilty and thereupon imposed the sentence of the court.
The defendant filed a motion for a new trial on the general grounds which was later amended by adding one special ground in which complaint is made on the judgment of the trial court overruling the demurrer to the bill of indictment.
The trial judge overruled the motion for a new trial as amended, and on this ruling error is assigned.