McNeal v. State, 34643

• Decision Date: 09 June 1953
• Docket Number: No. 34643,No. 2,34643,2
• Citation: 88 Ga.App. 333,76 S.E.2d 640
• Parties: McNEAL v. STATE
• Court: Georgia Court of Appeals

Page 640

76 S.E.2d 640

88 Ga.App. 333

McNEAL v. STATE.

No. 34643.

Court of Appeals of Georgia, Division No. 2.

June 9, 1953.

G. H. Mingledorff and Gibson & Maddox, Douglas, for plaintiff in error.

J. R. Walker, Sol. Gen., Blackshear, R. A. Moore, Douglas, for defendant in error.

Syllabus Opinion by the Court.

TOWNSEND, Judge.

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 * * * (Code of 1933, § 6-701), 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 cit. See also English v. Rosenkrantz, 150 Ga. 745, 105 S.E. 292, and cit.' Denmark v. State, 41 Ga.App. 470, 153 S.E. 430; Blackwell v. State, 46 Ga.App. 830, 169 S.E. 507; Hightower v. State, 22 Ga.App. 276, 95 S.E. 873; Giles v. State, 34 Ga.App. 201, 129 S.E. 12; Bazemore v. State, 35 Ga.App. 570, 134 S.E. 335; McElroy v. State, 123 Ga. 546, 51 S.E. 596; Thurmond v. State, 59 Ga.App. 333, 200 S.E. 807.' Moyers v. State, 59 Ga.App. 875(1), 2 S.E.2d 517; Davis v. State, 191 Ga. 558, 13 S.E.2d 351; Robinson v. State, 60 Ga.App. 638, 4 S.E.2d 721.

2. The motion of the defendant in error to dismiss the bill of exceptions here on the ground that the sole exception, based on the overruling of a plea of former joepardy, is premature, is hereby sustained, since it does not appear that any final judgment has been entered in the case and there is no exception to such final judgment. However, direction is given that the bill of exceptions here be allowed to be entered on the mintues of the trial court as exceptions pendente lite. See Williams v. State, 60 Ga.App. 636, 4 S.E.2d 719.

Writ of error dismissed with direction.

GARDNER, P. J., and CARLISLE, J., concur.