Byrd v. State , 199 Ga. 232 ( 1945 )

Jurisdiction of a case which ordinarily is in the Court of Appeals is not conferred on the Supreme Court by a motion to quash an accusation on the ground that to force the defendant to trial on a pretended accusation, null and void in its inception, violates the due-process clause of the constitution of Georgia. This is not a case where the constitutionality of any law is drawn in question.

No. 15144. APRIL 5, 1945. An accusation was preferred against Pratt Byrd in the city court of Reidsville, charging him with the operation of a slot-machine. Before pleading to the merits, he filed a written motion to quash on the grounds: (1) The accusation did not signed by the solicitor of the city court of Reidsville, but had only his typewritten name thereon; (2) the accusation did not conform in stated particulars to the act approved August 22, 1905 (Ga. L. 1905, p. 335), creating the city court of Reidsville; (3) because section 31 of said act of 1905 requires that all accusations must be signed by the solicitor of said court; (4) "to force this defendant to trial on a pretended accusation, null and void in its inception, violates article 1, paragraph 3, of the constitution of the State of Georgia [Code, § 2-103], which declares that ``no person shall be deprived of life, liberty, or property, except by due process of law;'" (5) because the accusation was not preferred by the solicitor of the city court, but by W. J. Sikes, a private citizen without any authority in law or under the act creating the city court of Reidsville to prefer accusations in said court. The motion was overruled, and the defendant filed exceptions pendente lite. He was tried and found guilty. The exception is to the order overruling his motion for a new trial, which contains the usual general grounds and two special grounds. An amendment to the bill of exceptions contains the statement: "Plaintiff in error and his counsel believe that this court has jurisdiction of this case rather than the Court of Appeals, because a constitutional question is involved in said case, his contention being that he was tried and convicted without due process of law." Error was also assigned on the exceptions pendente lite. If the Supreme Court has jurisdiction of the present writ of error, it is because of the motion to quash the accusation, and especially because of the language in the fourth ground, which is set forth in full in the statement of facts. This motion does not involve the construction of the constitution of Georgia, or of the United States, or of a treaty between the United States and a foreign government; nor does it draw in question the constitutionality of any law of the State of Georgia, or of the United States. Therefore the Supreme Court is without jurisdiction to pass upon the question raised in the motion to quash the accusation, which merely involves the application of a provision of the constitution of this State. Nor does any question raised in the motion for new trial invoke the jurisdiction of this court. Therefore the case is transferred to the Court of Appeals. Code, § 2-3005; Cowart v. State, 177 Ga. 377 (170 S.E. 253);Keeney v. State, 182 Ga. 523 (186 S.E. 561); Head v.Edgar Brothers Co., 187 Ga. 409 (200 S.E. 792); Chastain v. Alford, 191 Ga. 677 (13 S.E.2d 769).

Transferred to the Court of Appeals. All the Justicesconcur.