Gainey v. State , 232 Ga. 334 ( 1974 )

Nichols, Presiding Justice.

Sandra Gainey was indicted for the murder of her husband and convicted of voluntary manslaughter. The jury was unable to agree upon a sentence on the sentencing phase of their deliberations and under the provisions of the Act of 1970 (Ga. L. 1970, p. 949; Code Ann. § 27-2534), the trial court removed such question from the jury’s consideration and, after conducting a pre-sentence investigation, 12 days later sentenced the appellant. For the first time, in her amended motion for new trial, the appellant attacked the constitutionality of the above statute permitting the court to remove the case from the jury’s consideration.

Under repeated rulings of the court the constitutional question, presented for the first time in the defendant’s motion for new trial, was not timely raised so as to confer jurisdiction of the appeal upon the Supreme Court. See Brackett v. State, 227 Ga. 493 (181 SE2d 380); Woods v. State, 222 Ga. 321 (1) (149 SE2d 674).

The appeal is within the jurisdiction of the Court of Appeals and not this court.

Transferred to the Court of Appeals.

All the Justices concur, except Gunter, J, who dissents. FredM. Hasty, District Attorney, Charles H. Weston, for appellee.