Opinion
40363.
DECIDED OCTOBER 15, 1963.
Liquor violations. Traffic violations. Sylvania City Court. Before Judge Hilton.
Limerick L. Odom, for plaintiff in error.
E. W. Hill, Solicitor, contra.
An accused is entitled to be examined by his counsel to elicit his unsworn statement to the court and jury in his defense.
DECIDED OCTOBER 15, 1963.
The defendant was convicted on each count of a four-count accusation charging him with (1) possessing nontax-paid liquor (2) transporting nontax-paid liquor, (3) operating a motor vehicle at sixty-five miles per hour at a time and place where the speed limit was fifty miles per hour, and (4) failing to stop said motor vehicle when ordered to do so by a lawful order of peace officers. Thereafter, his amended motion for new trial was overruled and he assigns error on such adverse judgment. The State filed a motion to dismiss the writ of error for failure to specifically assign error on any judgment.
1. "Where the error alleged is in the granting or denying of a new trial, one assignment of error is sufficient to reach all the grounds of the motion on which the grant or refusal was based." Crouch v. Spooner, 8 Ga. App. 626 (1) ( 69 S.E. 1129). See also National Union Fire Ins. Co. v. Ozburn, 42 Ga. App. 393 ( 156 S.E. 305). Where any ground of the motion for new trial is sufficient a general assignment of error on the final judgment will preclude a dismissal. See Williams v. Slusser, 104 Ga. App. 412 ( 121 S.E.2d 796). Accordingly, since the bill of exceptions assigned as error the judgment overruling the motion for new trial and since at least one ground thereof is sufficient the motion to dismiss is without merit and must be denied.
2. Special ground 1 of the amended motion for new trial complains of a ruling of the court on a question in the nature of a demurrer. The question as to the sufficiency of the accusation is not a proper ground of a motion for new trial. Edenfield v. State, 95 Ga. App. 2 ( 96 S.E.2d 533); Seymour v. State, 210 Ga. 21 ( 77 S.E.2d 519).
Accordingly, such ground of the motion for new trial cannot be considered.
3. Special ground 2 of the amended motion for new trial assigns error on the failure to exclude certain testimony adduced on the trial of the case but fails to set forth or refer by page number to such testimony or to show what objection was made on the trial to such testimony. Such ground is incomplete and cannot be considered. See Allen v. Arthurs, 106 Ga. App. 682 (4) ( 127 S.E.2d 819).
4. The remaining special ground complains that the trial court erred in refusing to permit the defendant to be questioned by his counsel unless he was sworn and submitted to cross examination as any other witness. "As a matter of right the accused [is] entitled to be questioned by his counsel to elicit his unsworn statement to the court and jury in his defense." Shoffeitt v. State, 107 Ga. App. 217 ( 129 S.E.2d 572), and citations; Middlebrooks v. State, 107 Ga. App. 587 (2) ( 130 S.E.2d 798).
5. In as much as the case must be again tried and the evidence may not be the same on such trial the usual general grounds of the motion for new trial will not be passed upon.
Judgment reversed. Frankum and Jordan, JJ., concur.