Howell v. State, 7 S.E.2d 249

Howell v. State

7 S.E.2d 249 | Ga. | 1940

1. The Supreme Court shall have jurisdiction in all cases where the constitutionality of any law of the State of Georgia is drawn in question (Code, § 2-3005), but in order to raise such a constitutional question it is necessary to set forth the particular statute or provision of law which it is claimed is unconstitutional. Jones v. Oemler, 110 Ga. 202 (2) (35 S.E. 375); Rooks v. Tindall, 138 Ga. 863 (2) (76 S.E. 378); Spielberger v. Hall, 159 Ga. 511 (126 S.E. 391); Loftin v. Southern Security Co., 162 Ga. 730 (2) (134 S.E. 760); Wright v. Cannon, 185 Ga. 363 (195 S.E. 168). *655

2. Accordingly, where an indictment undertakes to describe in general terms some act of the General Assembly, and the defendant demurs to the indictment upon the ground that there is no such law, but that the law as set forth in the indictment, if there be any such, is fatally defective in that it violates stated provisions of the constitution, the demurrer does not bring into question the constitutionality of any law of this State within the meaning of the constitutional provision as to jurisdiction of the Supreme Court, since it fails to specify any particular statute or provision which it is claimed is unconstitutional.

3. The Court of Appeals, and not the Supreme Court, has jurisdiction of the present case.

Transferred to the Court of Appeals. All the Justicesconcur.

No. 13073. FEBRUARY 15, 1940. Jessie Howell was indicted by the grand jury of Warren County for the offense of manufacturing liquor, the charge being "that the said accused in the county aforesaid, on the 27 day of January in the year of our Lord nineteen hundred and thirty-nine, with force and arms did unlawfully distill, manufacture, and make distilled spirits, alcohol, whisky, mixed liquors and beverages, a part of which is a product of distillation, which said county has not by a majority vote voted into operation in said county the revenue act to legalize and control alcoholic beverages and liquors of the General Assembly of Georgia, approved February the third, 1938, contrary to the laws of said State." The defendant demurred to the indictment on several grounds, of which only the following are here material: "3rd. There is no such law entitled `The Revenue Act to Legalize and Control Alcoholic Beverages and Liquors of the General Assembly of Georgia, approved February the third, 1938,' as is charged in said indictment. 4th. The law as set forth in said indictment, if there is any such law, is fatally defective, in that it is violative of paragraph 1 of section 4 of article 1 of the constitution of Georgia, which constitution provides that laws of a general nature shall have uniform operation throughout the State, whereas the said indictment sets forth an alleged law which affects beverages and liquors of the General Assembly, and no other class of persons of said State, and same would not be of uniform operation." The demurrer was overruled, and the defendant excepted pendente lite. After conviction, the defendant moved for a new trial, which the court refused, *656 and he excepted, assigning error on the exceptions pendente lite and on the judgment refusing a new trial. The bill of exceptions contains the statement that the Supreme Court has jurisdiction because the constitutionality of a law of the State of Georgia has been drawn in question, and the writ of error was made returnable to the Supreme Court.