McNelis v. State ( 1908 )

Reb Ctjeiam :

This case arose in the city court of Richmond county. The defendant was convicted of a misdemeanor, and the case was carried by bill of exceptions to the Court of Appeals. That court certified to the Supreme Court certain constitutional questions as necessary to a proper determination of the ease by the Court of Appeals, the ease still remaining not finally disposed of on the docket of the latter court. After argument, but before any decision of the certified questions was reached' or rendered by the Supreme Court, the .plaintiff in error made a motion in the Court of Appeals to withdraw the writ of error; whereupon the Court of. Appeals passed this order (accompanying an opinion), and caused a certified.copy thereof to be transmitted to this court: “It is therefore ordered that a copy of this opinion be certified to the Supreme Court, with the request that they inform this court whether there is any reason why we should not allow the writ of error to be withdrawn. If any such reason exists, we will refuse to pass any final order upon the motion until after their decision upon the certified questions shall have been rendered; otherwise that court may return to this court the questions certified, together with the transcript of the record which has been transmitted to them in the ease.” Held:

1. That, under the above-stated facts, the certified questions and all other parts of the record in said case be returned to the Court of Appeals, in conformity to the request contained in said order.

2. Under the facts above stated, the question as to whether or not plaintiff in error shall be permitted to withdraw the writ of error is a matter for decision by the Court of Appeals, after such record shall have reached said court from this court in accordance with the order of transmission herein granted.

3. In the event that the Court of Appeals does not permit the writ of error to be withdrawn, said court may return such certified questions and other parts of the record to this court, in order that such certified questions as may be necessary for a determination of the case by that court may be decided by this court. If that court allows the writ of error to be withdrawn, no such return will be necessary.

All the Justices concur, except Atkinson, J., who dissents.