Stone v. State , 202 Ga. 203 ( 1947 )

The contention that the act under which the accused was convicted of a misdemeanor is unconstitutional having been made for the first time in a motion for new trial, and not by demurrer to the pleadings or by objections to the evidence or in some other appropriate way pending the trial, such constitutional question is not properly made so as to give this court jurisdiction, and accordingly the case is transferred to the Court of Appeals.

No. 15779. MAY 13, 1947. This case was transferred from the Court of Appeals, based upon the idea that this court, and not the Court of Appeals, had jurisdiction.

Upon an examination of the record it is found that, under the 10th and 11th grounds of the amended motion for new trial, an effort is made to raise the question of the constitutionality of a law. It appears that the accused was being tried for a misdemeanor under the act of 1943 (Ga. L. 1943, p. 568; Code, Ann. Supp., §§ 26-6203 et seq.), and certain evidence as to the reputation of the house, and the woman who ran the house, was admitted over the objection that it was irrelevant, immaterial, not a component part of the crime, and that the accused could not be responsible for or chargeable with the reputation of the woman or of her house. In the two grounds of the amended motion for new trial, the accused, for the first time, asserts that the act is unconstitutional for stated reasons. "A question as to the constitutionality of a law can not be raised for the first time in a motion for a new trial, where it was not made either by demurrer to the pleadings or by objections to evidence, or in some other appropriate way pending the trial."Hendry v. State, 147 Ga. 260 (8) (93 S.E. 413); Starling v. State, 149 Ga. 172 (99 S.E. 619).

Under the ruling quoted above, no constitutional question is properly made, and the case is not, otherwise, one of which the Supreme Court has jurisdiction. Accordingly, direction is given that it be transferred to the Court of Appeals, which has jurisdiction to determine it. Savannah Electric Co. v.Thomas, 154 Ga. 258 (113 S.E. 806); Western Atlantic R. v. Michael, 172 Ga. 561 (158 S.E. 426); Moore v. State,194 Ga. 672 (22 S.E.2d 510).

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