SUMMERS et al. v. STATE

(99 South. 48) (7 Div. 953.) SUMMERS et al. v. STATE. (Court of Appeals of Alabama. Feb. 2, 1924.) Criminal law &wkey;>956(4) — Motion for new trial properly overruled,- where allegation in support thereof not supported by the evidence. A motion for new trial, on the ground that, after the court had taken the cause under consideration, it had viewed the locus in quo in absence of defendants or their counsel was properly denied, where the only evidence on such contention was the statement of the trial judge that he had viewed the locus in quo before the trial. v\ Appeal from Circuit Court, Etowah County; O. A. Steele, Judge. Dick Summers and W. A. Noah were convicted of assault and battery, and they appeal. Affirmed. J. M. Miller and E. Ó. McCord & Son; all of Gadsden, for appellants. No brief reached the Reporter. Harwell G. Davis, Atty. Gen., for the State. No brief reached the Reporter. [MAJORITY — SAMPORD, J.] SAMPORD, J. Defendants were convicted of assault and battery, and appeal. The trial was had before the judge, sitting without a jury. In such cases, the judge in passing upon the facts takes the place of k jury. The evidence introduced by the state was ample to sustain the finding of guilt as to each defendant. After conviction, the defendants made a motion for a new trial on the ground that, after the evidence was all in, and the case had been submitted to- the court for decision, the court having the cause under consideration viewed the locus in quo in the absence óf the defendants or - their counsel. The statement of' the trial- judge, which is the only evidence offered to sustain this contention, is to the effect that he did view the locus in quo,- but that this took place on Saturday before the trial of the present cases, which according to the record took place on June 25th. The allegations of the motion, therefore, are not sustained, and the motion for a new trial was properly overruled. We find no error in the record, and the judgment is affirmed. Affirmed.