Robinson v. State

• Decision Date: 22 September 1939
• Docket Number: No. 27744.,27744.
• Citation: 4 S.E.2d 721
• Parties: ROBINSON. v. STATE.
• Court: Georgia Court of Appeals

4 S.E.2d 721

ROBINSON.

v.STATE.

No. 27744.

Court of Appeals of Georgia, Division No. 1.

Sept. 22, 1939.

Error from Superior Court, Gwinnett County; Clifford Pratt, Judge.

E. E. Robinson, was charged with an offense, and to review an order overruling his motion for a new trial, which he filed after the jury returned a verdict in favor of a traverse to his plea of former jeopardy, E. E. Robinson brings error.

Writ of error dismissed with direction.

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.

Syllabus Opinion by the Court.

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 jurisdic-tion to pass upon an assignment of error complaining of the judgment of the trial court denying defendant's plea...