
    6541.
    Wallace v. The State.
    Decided January 6, 1916.
   Russell, C. J.

1. Where the court declines to allow an amendment which is offered, it does not become a part of the record in the case, and this court can not consider what purports to be a copy of it, appearing in the transcript of the record. Taylor v. McLaughlin, 120 Ga. 703, 706 (48 S. E. 203). “The rule is well settled that where a party offers an amendment to his pleadings and the judge declines to allow it, the proffered amendment can not be specified as record.” Schaeffer v. Central of Ga. Ry. Co., 6 Ga. App. 282, 283 (64 S. E. 1107); Upchurch v. Nichols, 15 Ga. App. 359 (83 S. E. 273). In this ea$e there is an attempt to bring up certain rejected affidavits in relation to newly discovered evidence, by specifying them as part of the record; but even though these affidavits, as a matter of fact, were not sworn to, they must be treated as having been properly sworn to and signed, because they so appear as incorporated in the bill of exceptions verified by the trial judge.

2. A motion for a new trial is amendable at any time before the conclusion of the hearing thereon. Consequently it was error to refuse an amendment to the extraordinary motion for a new trial in the present case (based upon the ground of alleged newly discovered testimony), which amendment attempted to withdraw a contradictory statement in the motion, and another amendment, tendering the brief of the evidence upon the trial; and it was also error to decline to allow affidavits in support of the motion to be attached thereto.

3. Aside from the question whether the testimony which it was sought to adduce was such as to require the grant of a new trial, or whether it was insufficient for that purpose, the dismissal of the motion before it was perfected precluded a judicial consideration of the completed motion and deprived the movant of the exercise of a judicial discretion to which he was entitled. Judgment reversed.

Accusation of misdemeanor; from city court of Carrollton— Judge Beall. April 2, 1915.

Smith, Reese & Smith, for plaintiff in error.

C. F. Roof, solicitor, contra.  