165 S.E.2d 300 | Ga. | 1968
STAGGERS
v.
THE STATE.
Supreme Court of Georgia.
Heyman & Sizemore, Benjamin H. Oehlert, III, for appellant.
Lewis R. Slaton, Solicitor General, J. Walter LeCraw, Tony H. Hight, for appellee.
PER CURIAM.
This case came to this court pursuant to writ of certiorari to the Court of Appeals. Staggers was convicted of and sentenced for molesting a minor child. His motion for a new trial was overruled on April 1, 1968. Thereafter, on April 10, 1968, he filed his notice of appeal to the Court of Appeals "from the judgment of conviction and sentence entered thereon on the 25 day September, 1967," and enumerated as error only the denial of his motion for a new trial. The Court of Appeals affirmed the "judgment on the verdict," basing its decision on Hill v. Willis, 224 Ga. 263 (161 SE2d 281) and Crowley v. State, 118 Ga. App. 7 (162 SE2d 299), and held that "where the appellant fails to appeal from the judgment overruling his motion for a new trial, the judgment and rulings on the motion for a new trial become the law of the case as to the grounds of the motion." See Staggers v. State, 118 Ga. App. 97 (162 SE2d 737). Since the decisions in Hill v. Willis, supra, and Bryan v. State, 224 Ga. 389, 390 (162 SE2d 349), neither of which is a full bench decision, we have in rulings made in Tiller v. State, 224 Ga. 645, 646 (164 SE2d 137) and Gainesville Stone Co. v. Parker, 224 Ga. 819, neither of which is a full bench decision, explained the rulings in Hill v. Willis, supra, and in Bryan v. State, supra, to the extent that where a motion for a new trial has been overruled, and the movant for a new trial does not appeal from the denial of his motion, but does appeal from a previous appealable judgment in the case in which the motion was filed he may prevent the overruling of his motion for a new trial from becoming the law of the case by enumerating the denial of the same as error. Therefore, we hold that the Court of Appeals erred in affirming the "judgment on the verdict" without considering the merits of the grounds of the appellant's motion for a new trial.
Judgment reversed. All the Justices concur, except Frankum, J., who dissents.
