Denmark v. State

• Decision Date: 14 May 1930
• Docket Number: 20419.
• Citation: 153 S.E. 430,41 Ga.App. 470
• Parties: DENMARK v. STATE.
• Court: Georgia Court of Appeals

153 S.E. 430

41 Ga.App. 470

DENMARK v. STATE.

No. 20419.

Court of Appeals of Georgia, First Division

May 14, 1930

Syllabus by Editorial Staff.

Striking plea of former jeopardy is not final judgment and cannot be directly excepted to (Civ. Code 1910, § 6138).

Where writ of error was obviously premature, exceptions could not be withdrawn and filed in trial court as exceptions pendente lite.

Error from Superior Court, Chattooga County; James Maddox, Judge.

R. A. Denmark was convicted of an offense, and he brings error.

Writ of error dismissed.

Porter & Mebane and M. B. Eubanks, all of Rome, for plaintiff in error.

M. Neil Andrews, Sol. Gen., of La Fayette, Barry Wright, of Rome, E. S. Taylor, of Summerville, and Wright & Covington, of Rome, for the State.

Syllabus OPINION.

BROYLES, C.J.

1. Under repeated rulings of the Supreme Court and of this court, the striking of a plea of former jeopardy, filed by the accused in a criminal case, is not a final judgment within the meaning of section 6138 of the Civil Code of 1910, and a direct bill of exceptions assigning error upon the judgment striking the plea is prematurely brought and must be dismissed. Vaughn v. State, 38 Ga.App. 438, 144 S.E. 223, and citations. See, also, English v. Rosenkrantz, 150 Ga. 745, 105 S.E. 292, and citations.

2. "When, in a given case, it should have been obvious that the writ of error was premature, this court will refuse an application to allow the bill of exceptions to be withdrawn and filed in the court below as exceptions pendente lite." United Glass Co. v. McConnell, 110 Ga. 616, 36 S.E. 58; Harvey v. Bowles, 112 Ga. 421, 37 S.E. 364; Burkhalter v. Roach, 145 Ga. 834 (4), 90 S.E. 52.

3. Under the above-stated rulings and the facts of the instant case the writ of error must be and is dismissed.

LUKE and BLOODWORTH, JJ., concur.