Thornton v. State

234 Ga. 480 (1975) 216 S.E.2d 330

THORNTON
v.
THE STATE.

29744.

Supreme Court of Georgia.

Argued April 16, 1975. Decided May 27, 1975.

Edwin M. Saginar, for appellant.

GUNTER, Justice.

This is an appeal from an interlocutory order of the Superior Court of Clayton County which denied appellant's plea of "autrefois acquit" to a second prosecution for the misdemeanor of child abandonment. Code Ann. § 74-9902. Appellant argues on appeal that his plea in bar should have been sustained and that § 74-9902 is unconstitutional. The only issue ruled on and certified for review was the question of "autrefois acquit." This court will not pass upon the constitutionality of a statute unless it clearly appears that the point was properly raised in the trial court and passed on. Tant v. State, 226 Ga. 761 (177 SE2d 484) (1970). Where the only constitutional question passed on involves simply an application of unquestioned and unambiguous provisions of the State or Federal Constitution, appellate jurisdiction is in the Court of Appeals. Reid v. State, 223 Ga. 376 (155 SE2d 22) (1967). An appeal from the overruling of a plea of "autrefois acquit" falls within this rule. Meadows v. State, 170 Ga. 802 (154 S.E. 188) (1930); Letbedder v. State, 129 Ga. App. 196 (199 SE2d 270) (1973), cert. den., 129 Ga. App. 920, U. S. cert. den. 414 U.S. 1134 (1974).

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