Burke v. State , 205 Ga. 520 ( 1949 )

The Supreme Court has exclusive jurisdiction to review the judgment of a trial court in a case which involves an attack upon the constitutionality of a State law, and where as here an extraordinary motion for new trial is based upon an affidavit of a witness for the State averring that he committed perjury in all material portions of his testimony upon the trial, and the Code, § 110-706, is attacked as violating the due process and equal protection clauses of the State and Federal Constitutions, a judgment overruling such a motion is tantamount to holding that the Code section is valid, and the Supreme Court, and not the Court of Appeals, has jurisdiction of the writ of error to review such judgment.

No. 16653. JULY 11, 1949. Emory C. Burke was convicted in the Superior Court of Fulton County, Georgia, on an indictment charging him with violating the provisions of the Code, § 26-4902. The Court of Appeals, inBurke v. State, 76 Ga. App. 612 (47 S.E.2d 116), affirmed the judgment overruling a motion for a new trial. Subsequently he filed an extraordinary motion for new trial based upon an affidavit by one James Akin, who testified against Burke on the trial of his case, but who in an affidavit supporting the extraordinary motion repudiated all the material portions of his testimony and averred that it was false and was given under the persuasion and coercion of the prosecuting attorneys who knew at the time that it was false. All supporting affidavits required by the rule of law were attached to the motion. This motion was overruled by the trial court, and a bill of exceptions was taken to the Court of Appeals where a judgment of affirmance was rendered, that court holding that although there was involved in the case a constitutional question, a decision in the case could and would be made without deciding the constitutional question, and that that court had jurisdiction of the writ of error. The Supreme Court sustained the application for certiorari in which the judgment of the Court of Appeals was attacked upon the ground that that court erred in holding that it, and not the Supreme Court, had jurisdiction of the writ of error. The Supreme Court has exclusive jurisdiction to review all cases involving the constitutionality of a State law. Article 6, section 2, paragraph 4 of the Constitution (Code, Ann., § 2-3704). The attack in the instant case is upon the constitutionality of the Code, § 110-706, it being alleged that it violates the due process and equal protection clauses of both the State and Federal Constitutions. This attack is made for the first time in an extraordinary motion for new trial. It was held in Loomis v. State, 203 Ga. 394 (47 S.E.2d 58), that the constitutional attack there made upon the law upon which the conviction was predicated could not be made for the first time in a ground of a motion for new trial. Obviously in such a case the attack could and should have been made at or before the trial by demurrer or otherwise, since it must have been known that the validity of the law was essential to the maintenance of the prosecution. However, it was held in Boyers v. State, 198 Ga. 838 (33 S.E.2d 251), that the law required only that the constitutional attack upon the validity of a law be made at the first opportunity, and when so made would require an adjudication of its merits. Obviously, therefore, the attack in the present case was made at the earliest time possible, for it was only after the movant discovered from the testimony of his witness, who testified to having committed perjury upon the trial, that he had any interest in the validity of the law which would entitle him to attack the same. The judgment of the trial court overruling the motion for new trial, which contained as one ground thereof an attack upon the constitutionality of a State law, constituted a ruling sustaining the law as against the attack made. The bill of exceptions assigning that judgment as error presents a case involving the constitutionality of a State law. Consequently the Court of Appeals was without jurisdiction to decide the same. But the Court of Appeals in rendering its decision recognized the rule of this court that a constitutional question will never be decided when unnecessary to a decision in the case. That court ruled that since the new evidence is sharply and completely contradicted by the State's rebuttal evidence, the trial judge was authorized to render the judgment overruling the motion, even though the law assailed be conceded to be invalid, and upon this basis that court affirmed the judgment without ruling upon the constitutional question made in the record. The reasoning of that court sounds logical, but an exhaustive analysis of the case discloses that it is incorrect. The motion containing the constitutional attack was overruled in its entirety. This constituted an adjudication of each and every ground of that motion adversely to the movant. Herring v. Smith, 141 Ga. 825 (82 S.E. 132); Flemming v. Drake, 163 Ga. 872 (137 S.E. 268); Peoples Loan Co. v. Allen, 199 Ga. 537, 566 (34 S.E.2d 811); National Life c. Ins. v. Leo, 50 Ga. App. 473 (2) (178 S.E. 322). That judgment, therefore, upholds the validity of the Code, § 110-706, as against the attack made, and having so held, the trial judge, in obedience to the requirements of that section of necessity completely ignored the evidence of the movant offered in support of the ground of his motion. Such a judgment was not the result of the exercise of a discretion in adjudicating an issue of fact made by the conflicting evidence, but on the contrary was a ruling on a constitutional question and a judgment upon the motion after excluding from consideration all the evidence offered by the movant, and is, therefore, a direct ruling upon the constitutionality of a State law which the Supreme Court alone has jurisdiction to review. It follows that the Court of Appeals erred in the judgment complained of, for the reason that that court was without jurisdiction to render the same.

Judgment reversed. All the Justices concur, except Atkinson,P. J., and Wyatt, J., who dissent.