Burke v. State

• Decision Date: 11 July 1949
• Docket Number: 16653.
• Citation: 54 S.E.2d 348,205 Ga. 520
• Parties: BURKE v. STATE.
• Court: Georgia Supreme Court

54 S.E.2d 348

205 Ga. 520

BURKE v. STATE.

No. 16653.

Supreme Court of Georgia

July 11, 1949

Syllabus by the Court.

The Supreme Court has exclusive jurisdiction to review the judgment of a trial court in a case which involves an attack upon the constitutionality of a State law, and where as here an extraordinary motion for new trial is based upon an affidavit of a witness for the State averring that he committed perjury in all material portions of his testimony upon the trial, and the Code, § 110-706, is attacked as violating the due process and equal protection clauses of the State and Federal constitutions, a judgment overruling such a motion is tantamount to holding that the Code section is valid, and the Supreme Court, and not the Court of Appeals has jurisdiction of the writ of error to review such judgment.

Emory C. Burke was convicted in the Superior Court of Fulton County, Georgia, on an indictment charging him with violating the provisions of the Code, § 26-4902. The Court of Appeals, in Burke v. State, 76 Ga.App. 612, 47 S.E.2d 116 affirmed the judgment overruling a motion for new trial. Subsequently he filed an extraordinary motion for new trial based upon an affidavit by one James Akin, who testified against Burke on the trial of his case, but who in an affidavit supporting the extraordinary motion repudiated all the material portions of his testimony and averred that it was false and was given under the persuasion and coercion of the prosecuting attorneys who knew at the time that it was false. All supporting affidavits required by the rule of law were attached to the motion. This motion was overruled by the trial court, and a bill of exceptions was taken to the Court of Appeals where a judgment of affirmance was rendered, 51 S.E.2d 693, that court holding that although there was involved in the case a constitutional question, a decision in the case could and would be made without deciding the constitutional question, and that that court had jurisdiction of the writ of error. The Supreme Court sustained the application for certiorari in which the judgment of the Court of Appeals was attacked upon the ground that that court erred in holding that it, and not the Supreme Court, had jurisdiction of the writ of error.

James R. Venable, Atlanta, Jackson L. Barwick, Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., William Hall, Atlanta, for defendant in error.

DUCKWORTH Chief Justice (after stating the foregoing facts).

The Supreme Court has exclusive jurisdiction to review all cases involving the constitutionality of a State law. Article 6 section 2, paragraph 4 of the Constitution, Code, Ann. § 2-3704. The attack in the instant case is upon the constitutionality of the Code, § 110-706, it being alleged that it violates the due process and equal protection clauses of both the State and Federal Constitutions. Const.Ga.1945 art. 1, § 1, pars. 2, 3; Const.U.S.Amend. 14. This attack is made for the first time in an extraordinary motion for new trial. It was held in Loomis v. State, 203 Ga. 394, 47 S.E.2d 58, that the constitutional attack there made upon the law upon which the conviction was predicated could not be made for the first time in a ground of a motion for new trial. Obviously in such a case the attack could and should have been made at or before the trial by demurrer or otherwise, since it must have been known that the validity of the law was essential to the maintenance of the prosecution. However, it was held in Boyers v. State, 198 Ga. 838, 33 S.E.2d 251, that the law required only that the constitutional...