*1 334 May
Argued April 28, 1974. 1974 Decided Blanchard, Nicholson, M. Fleming, John Fleming & Barton, H. B. appellant. for Allen, Arthur K. Attorney, E. District
Richard Burke, General, P. Bolton, Deputy Thomas Attorney General, Attorney appellee. for Assistant THE STATE. 28860. GAINEY v. Presiding Justice. Nichols, was indicted for the murder of her Gainey Sandra manslaughter. The voluntary husband and convicted of agree upon was unable a sentence on the of their deliberations and under sentencing phase (Ga. 949; 1970, p. the Act of 1970 provisions of 27-2534), question the trial court removed such and, conducting after jury’s from the consideration pre-sentence investigation, 12 later sentenced time, in for appellant. For the first her amended motion trial, new the case permitting above statute the court to remove
from the
consideration.
jury’s
repeated
rulings
the con
stitutional
for the
time in the
question, presented
trial,
defendant’s motion for
was not
raised
new
so as
jurisdiction
appeal upon
to confer
(181
State,
Brackett v.
Supreme Court. See
concur, Gunter, J, who except dissents. May May Argued 1974. Decided Melton, House, Butterworth, McKenna & James N. McKenna, W appellant. for Andrew Weston, H. Attorney, Charles District Hasty, FredM. appellee. Justice, dissenting. Gunter, is as nine of this error number
Enumerated *2 discharging jury the erred in "The trial court follows: of this degree punishment its consideration from (T-381) the defendant undertaking to sentence and case R-49). of The said withdrawal (T-sentencing and only, the sentencing by the and the sentencing jury from the as of the accused rights the constitutional court violated to the Rights Bill of under the accused granted (Codified I, I, State, Art. Sec. Par. V the Constitution of (Codified 2-105) I, I, II Art. Sec. Par. Ann. and as Code § 2-102). Assembly, The Act of the General Ann. as Code § 27-2534) (Codified 949,950 Code Ann. pp. § of it violates the Constitution because is unconstitutional (Codified Ill, VII, Art. Sec. Par. VIII Georgia, of the State 2-1908).” Ann. as Code § this trial phase of sentencing or
During the second one-half one and approximately the deliberated jury verdict, and the reaching punishment hours without authorized the as he was then dismissed judge trial judge The trial Ann. 27-2534. to Code pursuant to do § later. twelve then entered a sentence for a new trial in her motion then appellant The sentencing pro- constitutionality this authorized the that attacked statute cedure and also it is unconstitutional. contending that procedure, this that the opportunity I think that the first sentencing of this constitutionality the had to attack after a authorizing it was the statute procedure and entered. sentence had been imposing judgment in a direct been made attacks could have constitutional a new trial a motion for by the or appeal judgment and statute sentencing procedure contending that the authorizing it were unconstitutional. cases where that all provides 6-702 § party the remedy new trial is an available
a motion for a first, or the motion to file thereto elect may entitled ".. . provides also This Code section directly. appeal included questions all consider may appellate 6-810.” for in of errors in the enumeration I think that the this case the circumstances had to attack opportunity sentencing procedure and direct by either it based was upon statute which following appeal new trial and motion for appeal by or of the motion. disposition issues in this constitutional I think that raised, I think that this court and properly were not this case should appeal, this has be transferred
I dissent. respectfully
28887. MASON v. MASON. Justice.
Jordan, court’s order in a from the trial This is an *3 decree. from a divorce contempt arising action herein, Mason, was divorced Evelyn was 11,1971. separation agreement A August on appellee decree, agreement in the and said incorporated divorce his wife pay appellee-husband remarriage. until her per the sum of week $308 and on payments in his Appellee delinquent became 25, 1973, contempt filed a September arrearage an alleging her against citation husband $4,875. alleged to show an action was later amended This $7,475. obligation the amount action, to the divorce prior On December ownership of the home which appellee transferred The home was warranty a deed. they appellant by lived to October, now appellee by appellant sold proceeds credit for the alleges that he deserves a against weekly his sale of a constructive trust by way obligations. support and child alimony an order 6,1974, the trial court issued February On trust should be the issue of the constructive holding as to "seeking Special Verdict tried before a