Murray v. State

Full title: MURRAY v. THE STATE

Court: Court of Appeals of Georgia

Date published: Sep 3, 1975

218 S.E.2d 673 (Ga. Ct. App. 1975)

218 S.E.2d 673

Opinion

50857.

SUBMITTED JUNE 26, 1975.

DECIDED SEPTEMBER 3, 1975.

Cruelty to children. Hall Superior Court. Before Judge Kenyon.

Smith, Smith Frost, John H. Smith, for appellant.

Jeff C. Wayne, District Attorney, Roland H. Stroberg, Assistant District Attorney, for appellee.

CLARK, Judge.

A verdict of guilty on two counts for cruelty to children was entered by a jury in the Hall County¹ Superior Court. After judgment was rendered defendant appealed directly to this court. We ruled adversely to appellant in that case in Murray v. State, 135 Ga. App. 264.

1 This county, created in 1818, was named for Dr. Lyman Hall, one of Georgia's three signers of the Declaration of Independence. Gainesville, its county seat, was named for E. P. Gaines, a hero of the Seminole Wars and of the War of 1812. Previously it was known as "Mule Camp Springs," descriptive of its use as a watering place for animals moving heavy equipment into the gold mining area.

During the pendency of his appeal in the original case appellant filed an extraordinary motion for new trial on the basis of affidavits and juvenile court testimony by the mother of the children in which she had recanted her previous in-court statements. In denying this motion the trial judge stated that he had "given careful study to the transcript of the record of the trial of this case." (R. 55). The instant appeal is from that judgment.

"An extraordinary motion for new trial institutes an entirely new case, requiring discretionary action on the part of a judge having jurisdiction thereof to bring it into actual existence as a cause in the courts; upon presentation to the trial judge, he may examine the entire record in the case and, in his discretion, refuse even to issue a rule nisi thereon (setting the matter down for a hearing)." Georgia Practice and Procedure (4th Ed.) § 19-3. Following the example of the trial court we have reviewed the trial transcript in the original appeal. This further consideration had led us to the conclusion that there was no abuse of discretion in the denial of the motion. Accordingly, the judgment is affirmed.

Judgment affirmed. Pannell, P. J., and Quillian, J., concur.

CLARK, Judge.

SUBMITTED JUNE 26, 1975 — DECIDED SEPTEMBER 3, 1975.