
    9536.
    Earnest v. The State.
    Decided January 9, 1919.
    Indictment for misdemeanor; from Ben Hill superior court—•. Judge Crum. January 22, 1918.
    
      James H. Dodgen, Otis H. Elkins, for plaintiff in error.
    
      J. B. Wall, solicitor-general, Jesse Grantham, contra.
   Broyles, P. J.

“Where one lias been convicted and sentenced in a erim-

inal case and has made a motion for a new trial, he can not, while the motion is still pending and undisposed of in the lower court, maintain a bill of exceptions assigning error upon the refusal of the court to set aside the sentence and judgment, the motion to set aside being based on an- alleged error committed at the. trial that entered into and . affected the judgment, viz., that the sentence and judgment were passed and signed while the defendant was absent from the court-room. If the motion to set asid’e should be sustained, it would not affect the .verdict or terminate the cause. Civil Code, § 6138; Duke v. Story, 113 Ga. 112 (38 S. E. 337) ; Duncan v. Duncan, 145 Ga. 424 (89 S. E. 486);. Durrence v. Waters, 140 Ga. 762 (79 S. E. 841). The ruling here made does not in any way conflict with the decision in May v. Collins, 118 Ga. 243 (44 S. E. 1002), which dealt with á motion’ in arrest of judgment, which is a separate cause from the main case and must be predicated on a defect, not amendable, which appears on the face 5f the record or pleadings. Civil Code, § 5957.” This ruling was . made on December 12, 1918, by the Supreme Court (148 Ga. 632, 97 S. E. 672), in response to a question certified by this court; and under it the writ of error is

Dismissed.

Bloodworth and Stephens, JJ., concur.  