Opinion
46688.
SUBMITTED NOVEMBER 2, 1971.
DECIDED NOVEMBER 15, 1971. REHEARING DENIED NOVEMBER 30, 1971.
Appellate procedure. Fulton Superior Court. Before Judge Alverson.
Spence, Garrett Spence, D. William Garrett, Jr., for appellants. Lewis R. Slaton, District Attorney, Joel M. Feldman, Carter Goode, Creighton W. Sossomon, for appellee.
1. Where the appeal is taken from the judgment of conviction and sentence and recites that a motion for new trial was filed and overruled, and no error is enumerated on the overruling of the motion for new trial, the law of the case has become fixed as to all issues passed on in the motion for new trial. Hill v. Willis, 224 Ga. 263 ( 161 S.E.2d 281); Tiller v. State, 224 Ga. 645 ( 164 S.E.2d 137); Young v. State, 119 Ga. App. 34 (3) ( 165 S.E.2d 869); Ford v. State, 123 Ga. App. 828 ( 182 S.E.2d 489). Accordingly, the enumerations of error to the effect that the verdict is contrary to evidence, without evidence to support it, decidedly and strongly against the weight of the evidence and contrary to law and the principles of justice and equity, show no reversible error. It is true that appellant, in his enumerations of error, has set forth the same language that appeared in his motion for new trial, and doubtless he felt that this was equivalent to enumerating error on the judgment overruling his motion for new trial. But such is not the case, according to Hill v. Willis, supra, and the other authorities cited in connection with same and unless the overruling of the motion for new trial is enumerated as error, that is, the actual judgment overruling his motion for new trial, then the law of the case becomes fixed to the effect that there was no error in any of the grounds of the motion for new trial which was overruled.
2. As to the other error enumerated, that there was a material variance between the allegations of the indictment and the evidence, same has not been argued by counsel in his brief.
Nor have authorities been cited thereon.
Therefore, the same is deemed to be abandoned.
Judgment affirmed. Jordan, P. J., and Quillian, J., concur.