The first count of the accusation charged the accused with selling intoxicating liquor, and the second with possessing intoxicating liquor. The affidavit on which the accusation was based was made by J. E. Bledsoe. On 'the trial a verdict of guilty on the second count was returned. The defendant’s motion for a new trial was overruled, and he excepted.
The bill of exceptions shows that before the accusation in this case was issued, an accusation liad been issued against the defendant “charging identically the. same offense and the same, transaction;” and that when the first accusation was called for trial, counsel for the accused called attention to the fact that the *497judge presiding was disqualified by reason of his relationship to the prosecutor O. B. Peacock. The bill of exceptions does not show what evidence, if any, was introduced to show that the judge was really disqualified, but recites that the court "took cognizance” of the fact, and allowed the solicitor of the city court to draw a second accusation, and it was on this one that the defendant was tried. After the call of the second accusation for trial the only statement made to the court in reference to his disqualification was that "counsel stated to the court that they did not waive the disqualification of the trial judge.” Even should we concede the disqualification of the trial judge in the first case, the trial on the second accusation was another and a different case, entirely distinct from the first, and the mere statement of counsel, that "they did not waive the disqualification of the trial judge,” does not properly present to the court the question of his disqualification on the trial of the second case. This must be shown by evidence "either at the trial or upon the motion for a new trial.” The first lieadnote to this opinion is the first headnote in the case of Burse v. State, 8 Ga. App. 113 (68 S. E. 559). See Berry v. State, 117 Ga. 15 (43 S. E. 438).
The excerpt from the charge of which complaint is made in the second special ground of the motion for a new trial states a correct proposition of law; and when all the facts and circumstances of the case are considered, it was not error, for any reason assigned, to give this instruction to the jury, as they could not have been misled by it.
There is abundant evidence to support the verdict.
Judgment affirmed.
Broyles, G. J., and LuTce, J., concur.