24 Ga. App. 677 | Ga. Ct. App. | 1920
Lead Opinion
This was a motion to change the venue of a case where the defendant was charge with murder. The motion was denied, and the defendant sued out a bill of exceptions to the Supreme Court; the judge, in his certificate thereto, directed that the case be sent to that court, but the clerk of the trial court transmitted it to this court, and the plaintiff in error now moves that the case be transferred to the Supreme Court. No constitutional question was raised in the trial court.
Previous to the constitutional amendment of 1916 the Supreme Court retained jurisdiction of bills of exceptions to judgments overruling motions to change the venue in murder cases, not on the ground that such a proceeding constituted a criminal case or a part thereof, but solely on the ground that it was a case of a pivil nature arising in the superior courts (Wilburn v. State, 140 Ga. 138, 78 S. E. 819), and the Supreme Court then had jurisdiction of all such cases. Since the constitutional amendment referred to, the jurisdiction of the Supreme Court, as to civil cases arising in the superior courts, has been restricted to certain classes of cases, and a motion to change the venue of a criminal case does not fall within any of those classes; and since that constitutional amendment all bills of exceptions to the overruling of motions to change the venue in murder cases have, when sent to the Supreme Court, been uniformly transferred to this court; the first of such cases being Marshall v. State, 20 Ga. App. 416 (93 S. E. 98), transferred to this court May 18, 1917.
Under the practice adopted in both reviewing courts, where a case has been sent by the clerk of the trial court to the reviewing court which has no jurisdiction thereof, it will be transferred by a formal order from that court to the court having jurisdiction; but where the clerk transmits a case to the reviewing court which has jurisdiction, although the judge may have directed that it be transmitted to the other court, the court having jurisdiction of the case will retain it and enter it upon its docket, without obtaining any formal order of transfer from the court to which it was erroneously directed by the judge.
Under the above rulings the motion of the plaintiff in error to transfer the case to the Supreme Court is denied.
Judgment affirmed.
Rehearing
ON MOTION ROE A REHEARING.