Starling v. State , 149 Ga. 172 ( 1919 )

George, J.

Under the ruling made in Hendry v. State, 147 Ga. 260 (8), 264 (93 S. E. 413), “a question as to the constitutionality of a law can not be raised for the first time in a motion for new trial, where it was not made either by demurrer to the pleadings or by objections to evidence, or in some other appropriate way pending the trial.” The plaintiff in error in the instant case was accused and convicted of a misdemeanor. In his motion for new trial an attack is made for the first time upon the constitutionality of the statute for the violation of which he was convicted. Under the ruling quoted above, concurred in by a majority of the court, no constitutional question is properly made in the case. The case is not one of which the Supreme Court has jurisdiction; and direction is given that it be transferred to the Court of Appeals, which has jurisdiction to hear and determine the case.

All the Justices concur, except Atkinson, J., dissenting.