*1 v. 26023. TANT THE STATE.
26024. v. THE BOATNER STATE. appeals Justice. Each of is from these the conviction Grice, possession for marijuana. sentence the unlawful appellants jurisdiction contend that court has because challenge 801, of “a constitutionality 79A Ga. seq., seq.” et and 9901, et upon argument
However, oral we called the attention of appellants’ counsel that the record in this court no contains motion, demurrer or other document making any constitu- tional attack upon any statute, upon inquiry and that our the record in the trial court none. contains Subsequently, appellants sought in the trial court perfect the record so document, include such a but it denied the order stated in motion. Its material “no described is of record on file demurrer/motion It further that counsel did not appearing [trial court]. physically tender to court a as set demurrer/motion out.”
Thereafter, appellants filed in this court a motion to Upon
the record so as to such a considera- include document. tion motion denied. that we must adhere to the rule that, follows “This constitutionality never
will
Act
clearly
point
.
Assembly
appears
General
unless it
that the
directly
made in
and dis
properly
the court below
tinctly passed
judge.” Bentley
trial
v. Anderson-
(1)
(184
Co.,
297);
Hardware
181 Ga.
SE
McGriff
Savannah,
v. Hardin,
See also
&
Co.
Fla. W. R.
110 Ga.
(35
(2)
Co.,
Frick
SE
West
868); Robinson McLennan,
SE
Transferred except Felton, who dissents. Argued September 1970 Decided October appellants. Horn,
Albert M. Attorney Bolton, Fleming, K. Attorney, E. District Arthur W. Attorney Gen- General, Hill, Jr., Harold Executive N. Courtney Stanton, B. Gordon, Marion 0. Wilder William eral, *2 Jr., Attorneys General, appellee. Childers, dissenting. that the trial record shows Justice, The for determina- judge presented motions the court overruled two to transferring case to the judgment this tion. I dissent from the on a ruled Appeals of reason if the court Court that the constitutionality of invoking ruling motion a on the the court actually to the court or statute, whether it had “tendered” been ruling ruling appeal- be filed at time or the of the the not it had judge any motion because If the trial overruled able. have so informed been tendered or filed he should not merits presumed be that the appellant, otherwise it would justice in the interest of passed my opinion that, were on. It is trial court the obtain from the truth, and this court should motions merits of the two overruled information as to what the may know it so this court whether were, that any there reasonable or to me that if appeal the not. It seems facts should to ascertain the true it action court can take this a party of depriving to do before every available means use ruling an right appeal the from adverse constitutional by question. provided means is constitutional available Such 29; amended, 6-809(b) (Ga. 1965, pp. 18, Ann. L. Code § part: any provides, in “At pp. 1072, 1073, 1074), L. which argument, the or after stage either before proceedings, of the provide for motion, either with or by order, shall without cor- necessary require the trial court to make amendments, all transpired certify transcript or in record or rections the the record on appeal, require appear below which not does from transcript proceedings or record portions additional the that complete transcript of evidence and that a up, require be sent or up, any other action prepared and or take proceedings be sent appellate the court can appeal and record so the (Emphasis it.” appeal and not dismiss and will comports of action My proposed course with supplied.) expressed in Ann. Appellate Act, Practice of the intent (Ga. pp. 40), L. i. e.: “. 6-905 law shall be liberally bring construed so about a decision on as to the merits every appealed, case to avoid any and dismissal case points any consider raised therein, except as may be refusal specifically (Emphasis referred herein.” supplied.)' GRUBBS DOWSE. Betty Justice. Pike E. Grubbs R. Grubbs were Nichols, in granted divorced wife, 1961. The divorce decree now Betty couple’s daughter of the Dowse, R. Grubbs daughter “with the to visit his minor [husband] at convenient times.” reasonable and The wife still resides in Ga., Lowndes an officer in County, husband, while Force, United Air now stationed States petition present was filed husband seeks have .to *3 the child him visit each during two months summer in Held: is placed immaterial is pleadings nomenclature Daugherty husband since was Murphy, held 225 428): (2) (170 custody
Ga. “An award of con- SE2d parties clusive between of custody, unless change affecting circumstances and welfare the interest privileges the child shown, and visitation are a custody. Haynes Howell, SE2d v. Harrington, Winburn 44); Hirsh v. SE2d Dobb, v. Smith, Smith (1) (167 597).” Ga. 241 the marital each parent changed
While status since the divorce decree rendered, the husband’s residence has changed he now 3,500 resides some miles from the child, years child is nine older, yet none of these changes change is a affecting circumstances the welfare demand, child which if authorize, indeed it would change in child. The trial court did not refusing err in sought the relief by the husband.
Judgment All concur. concurs affirmed. specially.
Argued September 15, October 1970Decided