Lunsford v. State

• Decision Date: 22 November 1938
• Docket Number: 12573
• Citation: 199 S.E. 808,187 Ga. 162
• Parties: LUNSFORD v. STATE.
• Court: Georgia Supreme Court

199 S.E. 808

187 Ga. 162

LUNSFORD v. STATE.

No. 12573

Supreme Court of Georgia

November 22, 1938

Error from Superior Court, Fulton County; Hugh M. Dorsey, Judge.

Joel Lunsford was charged with maintaining a lottery and, after jury returned verdict of guilty, the defendant filed petition for certiorari. The certiorari was approved and, to review the action of the trial court in overruling the certiorari and refusing the new trial, the defendant brings error.

Transferred to Court of Appeals.

Carl B Copeland and Durwood Pye, both of Atlanta, for plaintiff in error.

John A Boykin, Sol. Gen., John S. McClelland, Sol., and J. Walter LeCraw, all of Atlanta, for the State.

Joel Lunsford was arraigned for trial in the criminal court of Fulton County, on an accusation sharging him with maintaining a lottery. He filed a plea of former jeopardy. On motion of counsel for the State, who contended that the plea was generally insufficient in law to constitute any defense, the court overruled the plea. After the jury returned a verdict of guilty, Lunsford filed to the superior court of Fulton County his petition for certiorari, in which he contended that to refuse to sanction the certiorari and to refuse to grant a new trial because of the striking of his plea of former jeopardy, would be in violation of specified provisions of the constitution of this State and of the United States. The certiorari was sanctioned. The judge of the trial court filed his answer, to which Lunsford filed exceptions and a traverse. The judge of the superior court overruled all but one of his exceptions to the answer, and sustained some and overruled some of the grounds of his traverse. Thereafter the certiorari as approved by the court came on for a hearing on its merits; and after consideration the court overruled it and refused a new trial. Lunsford excepted to the adverse rulings on his exceptions to the answer of the judge of the trial court and his traverse thereof, as well as to the overruling of the certiorari on its merits and the refusal of a new trial, and brought the case by bill of exceptions to the Supreme Court.

Syllabus OPINION.

GRICE Justice.

1. A question of constitutional law, not raised in the trial of an accusation in the criminal court of Fulton County, but first made in a petition for certiorari to the superior court after verdict in the trial court, is not properly presented for decision. Mays v. State, 175 Ga. 260, 165 S.E. 68.

2. Under the amendment of art. 6, sec. 2, par. 5, of the constitution (Code, § 2-3005), defining the jurisdiction of the Supreme Court and the Court of Appeals, which places jurisdiction in the Supreme Court of 'all cases that involve the construction of the Constitution of the State of Georgia or of the United States,' the words 'construction of the Constitution,'...