Birdell v. State , 200 Ga. 785 ( 1946 )

Duckworth, Justice.

1. Under an indictment for robbery by force and intimidation the accused was convicted of the offense of robbery by force, a capital felony, the jury fixing his punishment at not less than four years and not more than six years. A writ of error complaining of the judgment overruling the defendant’s motion for new trial was transferred to this court by the Court of Appeals. The statute fixing the punishment for robbery by force (Ga. L. 1937, pp. 490, 491; Code, Ann. Supp., § 26-2502) imposes the death penalty unless the jury recommends mercy. The Constitution of this State, article 6, section 2, paragraph 4 (Ga. L. 1945, pp. 8, 43), gives exclusive jurisdiction to' this court of writs of error in all “cases of conviction of a capital felony.” The jurisdiction is determined, not by what punishment is actually imposed, but according to whether or not a conviction is had “of a capital felony.” Hence, this court, and not the Court of Appeals, has jurisdiction of the present writ of error. Mika v. State, 196 Ga. 473 (2) (26 S. E. 2d, 616).

2. The evidence authorized the verdict finding the accused guilty of the offense of robbery by force.

Judgment affirmed.

All the Justices concur. Victor K. Meador, for plaintiff in error. Eugene Cook, Attorney-General, E. E. Andrews, Solicitor-General, Durwood T. Pye, Paul Webb, C. E. Gregory Jr. and E. J. Clower, Assistant Attorneys-General, contra.