Spell v. State , 225 Ga. 237 ( 1969 )

225 Ga. 237 (1969) 167 S.E.2d 642

SPELL
v.
THE STATE.

25123.

Supreme Court of Georgia.

Argued April 14, 1969. Decided April 24, 1969.

Gordon Knox, Jr., for appellant.

Glenn Thomas, Jr., District Attorney, Arthur K. Bolton, Attorney General, Marion O. Gordon, Assistant Attorney General, William R. Childers, Jr., Deputy Assistant Attorney General, for appellee.

GRICE, Justice.

The enumerations of error in this appeal are the denial of appellant's motions for a new trial on his plea of insanity at the time of trial on an indictment for murder, for appointment of a psychiatrist to examine him, and to suppress certain evidence. However, none of these affords any basis for the jurisdiction of this court.

The motion for new trial involved only the appellant's plea of insanity at the time of trial. Insofar as this record shows there had been no trial upon the murder charge. This court has repeatedly held that it has jurisdiction in criminal cases under the Constitution (Art. VI, Sec. II, Par. IV; Code Ann. § 2-3704) "only when there has been a conviction of a capital felony." Robinson v. State, 209 Ga. 48 (1) (70 SE2d 514) and citations; Horne v. State, 212 Ga. 421 (93 SE2d 356).

The motion for appointment of a psychiatrist is not contended to afford any basis for this court's jurisdiction.

The motion to suppress evidence does not involve the construction of any provision of the Federal or the State Constitution, or the constitutionality of any law of this State or of the United States, but involves only an application of plain provisions of such Constitutions, and for this reason the Court of Appeals and not this court, has jurisdiction. Robinson v. State, 209 Ga. 48 (2), supra, and citations.

Therefore, the Supreme Court is without jurisdiction and the appeal must be transferred to the Court of Appeals.

Transferred to the Court of Appeals. All the Justices concur.