Robinson v. State

Decision Date22 September 1939
Docket Number27744.
Citation4 S.E.2d 721,60 Ga.App. 638
PartiesROBINSON v. STATE.
CourtGeorgia Court of Appeals

Alton Liles, of Buford, and Joe D. Quillian, of Winder, for plaintiff in error.

Frank Simpson, Sol. Gen., of Norcross, and C. E. Gregory, Jr., of Decatur, for the State.

MacINTYRE Judge.

When the case was called for trial and before pleading to the merits, the defendant filed a plea of former jeopardy. The solicitor-general traversed the plea and a jury trial was had on that issue alone. The jury returned a verdict finding in favor of the State on that issue. The defendant filed a motion for new trial based on the usual general grounds, and this motion, after a hearing thereon, was overruled by the court. The record nowhere discloses a final judgment disposing of the case. The defendant now brings the case to this court by a direct bill of exceptions assigning error on the judgment overruling said motion for a new trial, and seeks to have this court pass on the single question presented by an assignment of error complaining of the judgment of the trial court denying the defendant's plea of former jeopardy.

Until there has been a judgment finally disposing of the case in the trial court, no such judgment appearing in the instant case, this court has no jurisdiction to pass on an assignment of error complaining of the judgment denying the plea of former jeopardy. Code, § 6-701; Fennell v. State, 46 Ga.App. 227, 167 S.E. 318; Fugazzi, Lovelace & Company v Tomlinson, 119 Ga. 622, 46 S.E. 831; McElroy v State, 123 Ga. 546, 51 S.E. 596. See, also Blackwell v. State, 46 Ga.App. 830, 169 S.E. 507; Thurmond v. State, 59 Ga.App. 333, 200 S.E. 807; Moyers v. State, 59 Ga.App. 875, 2 S.E.2d 517; Futch v. State, 37 Ga.App. 151, 139 S.E. 110. It might be well to state that it appears in the record in Fennell v. State, supra, that the plea of former jeopardy was traversed and went to the jury and the judge directed a verdict against the plea. It was there held "It not appearing from the bill of exceptions in this case that any final judgment has been rendered in the lower court, the Court of Appeals has no jurisdiction to pass upon an assignment of error complaining of the judgment of the trial court denying defendant's plea of former jeopardy." We think the proper method for bringing cases to this court on the single question of setting aside a verdict of a jury finding against the plea of former jeopardy...

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