Smith v. State

• Decision Date: 04 September 1946
• Docket Number: 15540.
• Citation: 39 S.E.2d 313,201 Ga. 200
• Parties: SMITH v. STATE.
• Court: Georgia Supreme Court

39 S.E.2d 313

201 Ga. 200

SMITH v. STATE.

No. 15540.

Supreme Court of Georgia

September 4, 1946

Geo. G. Finch and W. R. Bentley, both of Atlanta, for plaintiff in error.

E. E. Andrews, Sol. Gen., Durwood T. Pye, and Lindley W. Camp, all of Atlanta, for defendant in error.

Statement of facts by JENKINS, Presiding Justice:

On a trial in the criminal court of Fulton County under an indictment for the alleged operation of a lottery, the defendant filed a motion 'to challenge the trial judge on the ground that [he] had stepped aside from his impartial position as presiding judge and become a prosecutor in said case.' The motion was overruled, and the trial before a jury resulted in the conviction of the defendant. In a petition for certiorari to the superior court of Fulton County, error is assigned on the overruling of such motion on the ground that the defendant was denied due process of law and equal protection under the 14th amendment to the constitution of the United States, in that he was not afforded a fair trial before an impartial and unbiased judge. Error is also assigned upon the admission of certain evidence over objection, upon certain charges to the jury and the refusal of certain requested charges, and upon the overruling of a motion for a mistrial based on certain arguments of the solicitor alleged to have been improper. The defendant in his bill of exceptions to this court assigned as error the order of the superior court denying the writ of certiorari.

Syllabus Opinion by the Court.

JENKINS, Presiding Justice.

This case falls clearly within the recognized rule that the Court of Appeals and not the Supreme Court has jurisdiction of cases 'which involve mere application of unquestioned and unambiguous provisions of the constitution to a given state of facts.' White v. State, 196 Ga. 847, 849, 27 S.E.2d 695, and cases cited. This case is therefore transferred to the Court of Appeals.

All the Justices concur.