Opinion
22387, 22388, 22389, 22390, 22391, 22392, 22393, 22394, 22395, 22396, 22397, 22400, 22401.
ARGUED MARCH 9, 1964.
DECIDED APRIL 9, 1964. REHEARING DENIED APRIL 21, 1964.
Trespass; constitutional questions. Savannah City Court. Before Judge Oliver.
B. Clarence Mayfield, E. H. Gadsden, for plaintiffs in error.
Andrew J. Ryan, Jr., Solicitor, Robert E. Barker, Assistant Solicitor, contra.
In each of the above cases the defendant's were charged on accusation with violation of Ga. L. 1960, p. 142 ( Code Ann. § 26-3005), which makes it a misdemeanor for any person to refuse to leave the premises of another when requested to do so by the owner or any person in charge of the premises, or the agent or employee of the owner or person in charge. In each case the defendants were tried in the City Court of Savannah. The trial judge sitting without the intervention of a jury duly convicted and sentenced to misdemeanor punishment. They except and assign error to the overruling of the general demurrers, the plea in abatement, the motion to acquit and motion for new trial, and the refusal to admit certain evidence. Held:
1. The general demurrers in ten of these cases are identical with the demurrers contained in Clark v. State, 219 Ga. 680 ( 135 S.E.2d 270). The ruling therein made is controlling here.
2. In three cases, Brownlee v. State, Sammons v. State, and Kinlaw v. State, the demurrers attack Code Ann. § 26-3005 as being unconstitutional for certain specified reasons. No reference was made to an Act of the legislature. There being no section 26-3005 in the Code of 1933, such abortive constitutional attack is futile. Morgan v. Todd, 214 Ga. 497, 499 ( 106 S.E.2d 37); Bowen v. State, 215 Ga. 471 ( 111 S.E.2d 44).
3. Review of all the remaining assignments of error contained in the respective bills of exceptions, to wit: those going to the overruling of the plea in abatement, the refusal to grant the motion for acquittal, the denial of the motion for new trial and the exclusion of certain evidence, requires an examination of the evidence adduced upon the trial. In order for this court to make such examination and pass upon such issues, there must be an approved brief of evidence. In the absence of an approved brief all questions involving a consideration of the evidence are resolved in favor of the judgment, which will be affirmed.
Although each of the instant cases contains a purported brief of evidence, in not one may be found a brief of evidence duly approved by the trial judge. As was held in Clark v. State, 219 Ga. 680, 684, supra: "This court will not simply guess what the true evidence was, nor sanction a plain failure to conform to the essential rules, nor violate well established rules by which we are bound in order to render a judgment based upon an unapproved and hence unreliable record." Therefore, all the judgments must be and are
Affirmed. All the Justices concur.